Standing Committee E

[Mr. Roger Gale in the Chair]

Communications Bill

Clause 307 - OFCOM's standards code

Amendment proposed [this day]: No. 604, in 
clause 307, page 265, line 23, at end insert— 
 '(k) that special regard is given to the unique status of the National Lottery and licensed lotteries.'.—[Mr. Lansley.]
 Question again proposed, That the amendment be made.

Roger Gale: I remind the Committee that with this we are taking the following:
 Amendment No. 605, in 
clause 307, page 266, line 10, at end insert— 
 '(6A) Standards set to secure the standards objective specified in subsection 2(k) shall, in particular, contain provisions designed to ensure that nothing shall directly or indirectly prevent, limit or restrict programme service providers from including in programmes material which— 
 (a) informs viewers and listeners of the benefits to the public from the National Lottery; 
 (b) informs viewers and listeners about the National Lottery and the features of licensed lotteries; 
 (c) educates viewers and listeners on how to participate in licensed lotteries; 
 (d) promotes the National Lottery and licensed lotteries. 
 (6B) In this section and section 312 ''National Lottery'' shall be as defined in section 1 of the National Lottery etc. Act 1993 and ''licensed lotteries'' means those lotteries licensed by the National Lottery Commission pursuant to section 6 of that Act.'.
 Amendment No. 606, in 
clause 312, page 269, line 40, after 'sponsorship', insert— 
 '(bb) the National Lottery Commission about so much of the draft code as relates to or could affect the National Lottery or licensed lotteries;'.

Brian White: This morning, the hon. Member for South Cambridgeshire (Mr. Lansley) outlined the reasons for moving the amendment and highlighted several of the current problems. If one looks at overseas lotteries as they develop, the relationship between ticket sales and the television show becomes more important. Such synergies are critical to why we tabled the amendment.
 The hon. Gentleman outlined several restrictions and I am sure that the Minister will address them. If we do not get the suggested changes to the code, there will be a problem future-proofing the way in which the national lottery moves forward. As interactive programmes and channels such as Avago TV come online, which will take betting and entertainment forward, the national lottery's unique position must be further emphasised, which is one of the reasons why we tabled the amendment. Ofcom is the right body to resolve that and the code is the right way to do it. If we 
 are to get the content position right, including the national lottery in the Bill is the right way forward. 
 When we spoke to representatives of the national lottery about its experiences and experiences overseas, one of the places that they referred us to was California, where the lottery is called ''The Big Spin''. I am not sure whether it was helpful to suggest that politicians follow that example.

Richard Allan: The Liberal Democrats support the amendments that relate to the national lottery. There should be a distinction between the status of the national lottery, which was set up by statute and raises money for charities and other good causes, and that of other organisations. People have attempted to set up similar operations with more or less success, and I understand that gaming law addresses that. It is important that we do not end up with a situation in which all similar ventures are treated equally because the national lottery is a first among equals that is different from the rest because of its statutory base. Other people may set up lotteries for perfectly good causes and we may wish to support them, but they should not have the same status as a national lottery that was set up by statute. It is helpful to consider amendments that would ensure that the distinction is clear.

John Greenway: One of the few things on which the Minister and Conservative Members would be absolutely certain to agree is the importance of protecting and boosting the national lottery's fortunes. Given that, I am sure that, like us, he will be sympathetic to the amendments' objectives, and we look forward to hearing whether he thinks that the changes are needed.
 There are two issues to consider, although they are slightly contradictory. First, no member of the Committee would want to pass primary legislation to prevent future television-programme-style promotions of the national lottery that would play a role in maintaining the lottery's income base and the stream of money for good causes. I am satisfied by Camelot's arguments that the BBC and the ITV arrangements at present create problems in that regard. The Government have an opportunity to make a change. 
 The slightly contradictory caveat is that there is also no doubt that the rest of the gambling industry deserves some recognition of the fact that the lottery already has a substantial advantage in promotion. On balance, however, we would favour ensuring that the legislation does not prohibit or restrict Camelot—or any future lottery operator, because we are looking many years ahead with the legislation—from taking new initiatives through the medium of television. That is particularly important if we consider the development of the multi-channel digital age, in which it may be possible for people to play the lottery on an interactive basis through their digital television receivers. 
 I hope that my hon. Friend the Member for South Cambridgeshire, who moved the amendment, will feel that those on his Front Bench generally support him. We in the Conservative party are very proud of having 
 created the lottery, and we wish it every success in the future.

Kim Howells: I confirm, in response to point made by the hon. Member for South Cambridgeshire, that the Government accept that the national lottery has been specifically provided for by Parliament and that it has a public purpose in raising money for good causes.
 I am happy to make it clear to the Committee that the Government believe that it would be entirely appropriate for Ofcom to recognise, in the application of their codes, the national lottery's distinctive place in the life of this country, and its enormous contribution to good causes. It would also be right for Ofcom to take account of the public good derived from the success of the national lottery in its regulation of licensed services. 
 However, I must resist the amendment. I do not intend to be derogatory but, as my hon. Friend the Member for Milton Keynes, North-East (Brian White) hinted, the amendment is rather convoluted and may be defective. Having said that, its general purpose is clear. It aims to provide more scope for education and information about the national lottery, and its promotion in the broadcast media. 
 The amendment does not operate directly on the application of Ofcom's codes to the presentation of the national lottery. It does not state that the codes should not restrict the appearance in the media of the national lottery. However, it seems to require Ofcom to prevent broadcasters from doing anything that restricts the appearance of programme material of the sort described. What the result of that would be in practice is unclear, but it would be an unacceptable intervention in the editorial responsibilities of the broadcasters. 
 The amendments seek to allow more scope for the presentation of the national lottery on television. We should, therefore, examine what is currently prevented. 
 The national lottery draw appears on the BBC, and its appearance is regulated by the BBC in accordance with the producers' guidelines. It would be wrong to seek to intervene in the way in which the BBC governors interpret and discharge their responsibilities under the charter. The producers' guidelines already give a special place to the national lottery: it is covered in chapter 23 of the current edition. It is quite proper for broadcasters, including the BBC, to make their own editorial decisions about arrangements for the appearance of, for example, ''Lotto'' logos, bearing in mind their overall responsibilities to viewers and, in the BBC's case, licence fee payers. 
 What restrictions are there on the appearance of the lottery on commercial channels? There are no statutory bars on the appearance of the lottery. However, there may be general obligations on the regulator, notably under the TWF directive, with regard to distinguishing programmes from advertising. 
 In addition, under UK legislation, specific responsibilities may be imposed by the Independent Television Commission and, in future, by Ofcom. The general standards objectives are set out in the clause. We believe that those high-level objectives are right. It is therefore a matter for the regulator's discretion to interpret those objectives to ensure that they are met. It would be quite wrong to exempt the national lottery from those requirements. 
 On the other hand, there is clearly a margin of discretion for the regulator in deciding how the objectives are best met. It is quite right for the national lottery to examine with the regulator and broadcasters how members of the public could learn more about the benefits of the lottery in ways consistent with the overall objectives. Camelot recently provided a list of things that it wanted to do but felt that broadcasting regulation prevented. Officials from my Department discussed the list with the ITC and it appears that there may be more scope for the national lottery to appear in licensed broadcasting channels than Camelot was perhaps aware of. However, Camelot must bring forward specific proposals. 
 To summarise, nothing in broadcasting regulation specifically stands in the way of more extensive use of the broadcast media by the national lottery. There may be scope for the national lottery to appear in broadcast media in new ways. We and the ITC believe that there is, but the lottery operator will need to come forward with proposals that appeal to broadcasters which do not breach fundamental broadcasting principles—such as the broadcaster's editorial control of content and maintenance of the distinction between programming and promotion.

Michael Fabricant: The Minister has just made an interesting point. Does he have a view about a matter that we discussed earlier? Although it is not permitted at present, should a programme similar to that transmitted by the BBC be allowed to be screened by a commercial company?

Kim Howells: As I just tried to point out, and I am sure that the hon. Gentleman will agree, there is probably room for such a programme, but proposals must come from Camelot in order for judgments to be made.

Andrew Lansley: Is the Minister saying that, in so far as the high-level objectives to which clause 307(2) refers such as preventing the inclusion of ''unsuitable advertising'' or ''unsuitable sponsorship of programmes'', he would not expect the information, education and promotion of the national lottery to be described as unsuitable advertising or sponsorship?

Kim Howells: I cannot give the hon. Gentleman a definitive answer because the ITC and Ofcom would have to see what form the programme would take. However, I take his point because a distinction should be drawn. As I tried to say earlier, if proposals come forward in a substantive form, so that the ITC can consider them, that distinction can be highlighted. I see far fewer impediments to Ofcom using the media in
 different ways than are probably envisaged by Camelot.
 Many of the detailed concerns about ITC regulation that Camelot has expressed to my Department have not been tested because it has yet to develop proposals with commercial broadcasters. Camelot may also want to consider with the BBC whether the producer's guidelines are set at the correct level given the lottery's special status. Perhaps the hon. Member for South Cambridgeshire could also think about that important point. If the guidelines need revision and the issues need to be discussed with the BBC or ITC, Camelot should do so. 
 We do not believe that United Kingdom regulation has stifled the national lottery or that statutory change to communications legislation is necessary to its success. There is already scope for some of the things that Camelot wants to do. We look forward to constructive discussions between Camelot, the broadcasters and Ofcom. On that basis, I hope that the hon. Member for South Cambridgeshire will withdraw his amendment.

Andrew Lansley: I am grateful to the Minister for his constructive response to our short debate. If he feels that the construction of the amendments is too complex or that putting in a high-level objective in relation to the national lottery offends against the theology of the Bill, as it were, there are other mechanisms. Under clause 309(7), advertisements of a public service nature or party political broadcasts are expressly excluded from the operation of the standards code. That would be a simple mechanism for implementing the provision, and one that I also contemplated.
 Unless he tells me otherwise, I take the Minister's reply to be positive, but that the Bill does not necessarily need amending and much more can be done without it. It will need changes; for example, the ''Big Ticket'' game was unable to succeed because as a consequence of the BBC's code, a TV game on the BBC cannot have the same name as the lottery ticket. That needs to be considered, but subject to the Minister's encouraging response to my recent intervention, if we can be increasingly confident that the national lottery will not be treated simply as another commercial company, and especially if it is not to be treated on the same terms as other forms of gaming—it has a different purpose and I would be the first to worry about the alliance between the power of television and the practice of gaming being taken too far—within these limits and a public purpose I would be happy to rest on the matter for the time being. I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn.

John Greenway: I beg to move amendment No. 651, in
clause 307, page 265, line 25, at end insert— 
 '(3A) Before drawing up or revising the codes, OFCOM shall have regard to the extent to which matters they are required to secure under this section are, or may be, secured by effective self-regulation; and, in the light of that, to consider to what extent it 
would be appropriate not to draw up, modify or withdraw a code under this section. 
 (3B) In determining for the purposes of this section whether procedures for self-regulation are effective, OFCOM may take account not only of self-regulation independent of those to whom it applies, but also of the extent to which the matters to be secured under this section are being, and are likely to be, secured without the further imposition of a code.'.
 Towards the end of this morning's sitting the Minister challenged me to tell him where Ofcom's power to ban tobacco advertising might appear in the Bill other than in clause 307(2)(g) and (h) using the word ''unsuitable''. I will not pursue the point, but I am advised that clause 309(1) and (5) would give Ofcom such powers. I am sure that the Minister will want to discuss with his advisers whether in the light of that he might want to reconsider what we said in respect of amendments Nos. 205 and 206. 
 Amendment No. 651 relates to the advertising issue in a different way. We return to the question I first raised on clause 6 all those weeks ago—it seems like an eternity now—where the Minister in response kindly and courteously said he would consider the issue with the possibility of returning to the matter with a Government amendment if it was thought it would improve the Bill's wording. This amendment is proposed in a similar spirit. It would add new wording to the end of subsection (3), which states: 
''The standards set by OFCOM under this section must be contained in one or more codes''.
 We propose two additional subsections which would reinforce Ofcom's mandate either to draw up codes itself or to contract them out to an effective, independent and properly funded regulatory body, which the Minister acknowledged is an option for broadcast advertising to which the Government are attracted. Without these new subsections or something similar—perhaps the wording is defective—clause 307 could imply that the choice of contracting out to a self-regulatory body might not be available and that Ofcom would have to draft its codes notwithstanding the presence of such a self-regulatory system for advertising content. 
 The amendment purposely replicates the wording that my hon. Friend the Member for South Cambridgeshire used in amendment No. 603 to clause 302, on local radio content. We debated that last week and concluded our debate this morning. The issue is the same. I have already reminded the Committee that the Government said that they would come back with their own amendment, if that were necessary, to future-proof the extent to which Ofcom should have to regard to self-regulation in clause 6. For the sake of clarity, we think that self-regulation should be covered in the Bill—not only in clause 6 as regards Ofcom's general duties, but in clauses, such as clause 307, that place a duty on Ofcom to draw up codes. As has already been said in debate, the move to self-regulation will not be a free-for-all as Ofcom will have back-stop powers to ensure that a self-regulatory system to which it contracts out its functions is effective, is sufficiently independent of the persons who are subject to its procedures, and has adequate funding arrangements. Those back-stop powers are significant. 
 If the Government are serious in their desire to pursue self-regulation wherever practical—and I believe that they are—it will be important to ensure that Ofcom is not constrained in that task by the wording of the Bill, however well-intentioned that wording may be.

Andrew Lansley: My hon. Friend the Member for Ryedale (Mr. Greenway) has covered almost all the arguments and done so very well. I want to add just one point. My hon. Friend referred to the wording of my amendment to a previous clause. The second limb of the argument is not simply to cover self-regulation that may come about in future, but—in addition to what is currently in clause 6—to require that Ofcom consider the scope of the code. Otherwise, we could be in a situation where everything that is to be subject to the code will always have to be subject to a code, whether that code is Ofcom's own or that provided by a self-regulatory body. In this issue, as in considerations of localness or other issues where self-regulation arises, Ofcom could in future have scope to say that there was no need for a code to maintain the standards that are specified in legislation. That would allow Ofcom to have a standards code at a lower level than is required by the current complete listing in clause 307.

Kim Howells: As we said this morning, it is very important to maintain standards in the broadcast media. Those standards are established professionally and are based on research into public standards and attitudes. The maintenance of standards is one of Ofcom's principal duties, as established in clause 3. The mechanism for maintaining those standards is through the establishment of codes that broadcasters can follow when making their programmes. Given the power of the medium and the absence—rightly—of precensorship, it is especially important to have clear standards codes that are backed by sanctions.
 We have also discussed the scope for increasing self-regulatory approaches. The hon. Member for Ryedale has just spoken about that. He is absolutely right to say that we could use the power in clause 309(6) to deal with banning tobacco advertising in the broadcast media. I congratulate him on his research capabilities. This is a power of Government direction and it is hardly a light touch. It is best to give Ofcom the high-level responsibility to protect children, for example, and the flexibility in the Bill to act in that way. 
 There are specific provisions for self-regulation, notably in relation to premium rate communication services. However, Ofcom is properly charged under the Bill with a public responsibility for maintaining standards. It can work with others and we expect it to work closely with industry to develop the codes. It can contract out to other bodies the responsibility for the day-to-day application of the codes or the handling of complaints, which is an example of the kind of work that all broadcasters have to do. 
 Ofcom can also adopt codes or parts of codes established by other bodies, but under the contracting-out arrangements Ofcom rightly retains the ultimate responsibility and accountability for the maintenance 
 of standards. It remains the best way to achieve public confidence in broadcasting regulation. 
 The amendment requires Ofcom to consider the options of not drawing up or withdrawing a code under clause 307. Such a proposal would undermine the regulatory structure of content regulation, which depends on a code and Ofcom's ultimate statutory responsibility for its effectiveness.

John Greenway: Is the Minister saying that the Government are not prepared to countenance any circumstance in which there would not be codes? We accept that the two new subsections would provide an opportunity for there not to be codes and I want to be sure that the Government are not prepared to countenance that. On the other side of the coin is the Minister equally saying that notwithstanding the wording of clause 307, it remains the Government's aspiration that Ofcom could look to self-regulation in this area, despite the existence of the codes?

Kim Howells: The hon. Gentleman has got to the heart of the argument. There should be codes, which should involve the industry at all levels and include speaking to the customers—the listeners and viewers. I see no problem with that; codes are the way forward.
 I tried to explain that there is nothing to prevent a sophisticated and far-reaching degree of self-regulation but it must be based on the firm foundation of the industry having codes that we can see and measure and against which to test its performance.

John Greenway: I am not sure that the Minister entirely replied to my point about self-regulation. However, the matter has been covered sufficiently and I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Clause 307 ordered to stand part of the Bill.

Clause 308 - Special impartiality requirements

Nick Harvey: I beg to move amendment No. 509, in
clause 308, page 266, line 22, leave out first 'national'.

Roger Gale: With this it will be convenient to discuss the following:
 Amendment No. 510, in 
clause 308, page 266, line 22, leave out 'and national'.
 Amendment No. 514, in 
clause 308, page 266, line 22, leave out 'and' and insert 'or'.
 Amendment No. 511, in 
clause 308, page 266, line 23, after 'service', insert 
 'and radio licensable content service'.
 Amendment No. 512, in 
clause 308, page 266, line 25, leave out paragraph (c).
 Amendment No. 515, in 
clause 308, page 266, line 26, leave out 'or' and insert 'and'.

Nick Harvey: We discussed in a previous sitting the general issue of impartiality in the broadcast media and I was pleased that the Minister confirmed his view
 that impartiality should be sustained in future on a similar basis to the present.
 The amendments move from the general realm of impartiality to specific provisions for local radio. For television and national radio, the Bill adheres to the principle that we must preserve due impartiality on the part of the person providing the service. The test is for local radio is rather less. A local radio station is simply prohibited from giving 
''undue prominence . . . to the views and opinions of particular persons''. 
The purpose of the amendments is to put the requirements for local radio on the same basis as that which the Bill requires for television and national radio. 
 In moving the amendments I do not suggest that there has been a problem to date in commercial or BBC local radio, but I know that hon. Members have complained about problems from time to time. The difficulty arises when local radio stations get into the realms of campaigning over particular issues in their communities. The examples that I have heard quoted include campaigns on whether there should be a directly elected mayor for an area, where a local radio station may take a firm view. It may not give 
''undue prominence . . . to the views and opinions of particular persons or bodies'', 
but it will find lots of persons and bodies who happen to adhere to its view. It can put them all on the radio and still conform to the requirements that are placed upon it in legislation. That is not balanced coverage and it is not in any sense impartial coverage. 
 I have also heard the complaint, although it grieves me not the slightest, that the local radio station played a particularly vigorously part in the campaign over Kidderminster hospital. That again would not conform to the sort of requirement that is put on national radio or television. As we consider the growing probability of cross-media ownership and as the Bill is relaxing some of the requirements concerning radio ownership, I wonder how members of the Committee would feel if their local radio station were run by the editor of their local paper? How would they feel if that editor started importing into local radio the sort of editorial techniques and approaches he or she currently uses in putting together a local newspaper? It could fundamentally change the character of broadcast media and some of the things that we have taken for granted. 
 From my previous experience fulfilling other roles for my party, I am aware that broadcasters at a national level are already pretty blasé when complaints are made that they are not observing proper requirements of impartiality. I discern from what I have read in newspaper columns that when other parties have complained to the broadcasters they have found them pretty blasé too. I would never dream of being rude to broadcasters but I gather that certain people around the Westminster village who are rude tend to read about it the following day in the newspapers. 
 If campaigning local radio stations were similarly blasé, we might come to regret the fact that we had not taken the opportunity offered by the Bill to put local radio on to the same footing as television and national radio so that at least one could bring a complaint. The current requirements may well prove inadequate. There appears to be a printing error in the last few words of subsection (1)(c). I cannot for one moment believe that the Minister will accept any of my amendments, so will he at least look at that? I have made my point that local radio should operate on the same basis as national radio and television. I look forward to hearing his comments.

Nick Palmer: I found the hon. Member for North Devon (Nick Harvey) quite persuasive. At this stage, there is still potentially a problem, because the overwhelming majority of local radio stations, like the overwhelming majority of local newspapers, are anxious to stay on good terms with all sections of the local community. Only in cases such as that in Kidderminster, in which a local lynch mob formed, do we see the radio jumping off the fence. I just wanted to flag up that issue. I do not propose to support the amendments, but it is worth bearing in mind for the future.

John Greenway: In the hope that it might stiffen the Minister's resolve, notwithstanding what the hon. Member for Broxtowe (Dr. Palmer) has just said, I think on reflection that we do not want to support the amendments. The hon. Member for North Devon referred to campaigning by newspapers, and I can see that, in the months and years ahead, local radio stations might adopt a similar approach.
 Let me describe what is happening in my area. The Yorkshire Evening Press is pretty much a monopoly evening newspaper in York and most of north Yorkshire, although there is the Scarborough Evening News on the coast, and the Yorkshire Evening Post has some penetration. The YEP is campaigning against any upgrade of the RAF Fylingdales radar station or any involvement in missile defence. I happen not to agree with it, but I do not take objection to what is being done. I do not believe that any harm is done by the YEP taking that view, because it has to deploy its arguments, and a number of people have seen through them, but they still buy the paper, and I think that they would still listen to the radio programme. 
 There is a difference in respect of the use of a local medium, whether print, sound or even television, to highlight a local issue. Let us imagine that Radio Clyde in Scotland campaigned against a closure in the Clyde area, which it might well want to do. That would fall foul of the amendment if it were included in the Bill, and it could well be one role that these organisations, whether print or broadcast, would wish to fulfil. What is crucial is that there should be due impartiality in the case of the national channels, for which clause 308(1)(b) provides.

Nick Harvey: The hon. Gentleman gives the example of a radio station campaigning against an unpopular closure. Does not he think that, in the interests of giving the listeners all the information that they need, it would have been appropriate for those
 proposing the closure at least to go on the radio to state why they wanted the closure?

John Greenway: I have absolutely no doubt that that would happen. One does not necessarily need to micro-manage every single thing that a local radio station does. That is one reason why we took exception to clause 302, which we debated at length last Thursday and again this morning. I remain of the view that we can trust broadcasters to give everyone the opportunity to have their say. In any case, most of them have phone-in programmes, whereby people can go on air and have their three penn'orth.

Richard Allan: The hon. Gentleman's argument could apply equally to the national medium. I do not see what distinction is being drawn between the two, particularly given that in many areas the most popular radio station will be the local station. Far more people will listen to that than to Radio 1, 2, 3, 4 or whatever, so why not release those from the requirement?

John Greenway: People do that out of choice. There is a much stronger obligation for impartiality on national radio stations. The majority of regularly listened-to speech stations are funded and broadcast by the BBC, which is a wholly different matter. It is interesting that the Liberal Democrats, whom many would think as the arch-local campaigners in politics, should take exception to the clause. I am not convinced by their arguments, and when it gets to the time of elections, the provisions in the various Representations of the People Acts ensure total impartiality. That has been my experience in fighting four general elections and one hard-fought local election, each one successfully.

Nick Harvey: Will the hon. Gentleman give way?

John Greenway: No. I have had my say, the hon. Gentleman has had his, and there is a clear difference between us. We cannot support the Liberals on the point.

Simon Thomas: God preserve us from Focus FM—[Laughter.] Nevertheless, there is some virtue in what the hon. Member for North Devon was saying.
 Two points concern me about the clause. First, it provides the security that particular persons or bodies should not gain undue prominence on local radio, so it accepts that there is a danger that local radio could go that way. However, there is a reverse to that preservation, as it is possible for local radio stations to ignore what is going on in their own patch by not covering certain issues or individuals. People may say that the stations would suffer, but they could have a licence for several years, so it would be some time before they suffered. A hypothetical local radio station that never asked its local representatives to explain what they were doing might be said to be ignoring an important aspect of how local policies were made. 
 My second concern is about the definition of national and local. I had a careful look at section 239, which defines ''national''. It does not apply to BBC programmes so, in theory at least, the clauses do not apply to BBC Wales, Radio Cymru, Radio Scotland or Radio nan Gaidheal. However, the potential exists for a commercial service that is defined as local in the ambit of the Bill to affect a huge region of the United Kingdom, possibly most of Wales, Scotland or north England. It could cover a large area and not come under the national provisions of the Bill, but still have a significant impact in a region, or nation, of the United Kingdom. It could start campaigning using the freedom of the clause in a way that caused us to feel that we had allowed too much leeway. 
 I hope that the Minister will address those issues: when does local stop being local—I understand that we do not want to micro-manage—and start being influential, so that we need public interest safeguards?

Kim Howells: The hon. Gentleman has raised an interesting point. Is he arguing that a radio station in, for example, the west midlands that served some 6 million people should be accorded less significance than a radio station in Wales that has a potential audience of 2.9 million or in Scotland of less than 5 million? Where does one draw the line?

Simon Thomas: That is precisely the question that I was asking the Minister. [Laughter.] I thought that he was going to tell me. My point was that I do not know when local becomes regional becomes national. I accepted that a radio station could cover a huge area of England and have a disproportionate effect on the politics in that area. The point does not simply relate to Wales or Scotland.
 Once we have regional elections in England, the Minister's point will bear examination. I originally raised that point in the context of Wales and Scotland because we have separate electoral processes. Once there is a west midlands regional assembly, there may also be a west midlands FM broadcasting to all the electors in that area and once they start campaigning on an issue that the assembly will deal with, then defining what is local, national, regional, and so on, becomes a tricky marsh in to which we do not want to go. The wording of the clause is somewhat holey—a bit like a cheese with holes in it. I can see how, under the clause, we could get to a point where people who wanted to play a hardball campaigning game could get away with a lot in respect of local radio. 
 The two points that I wanted to mention are these. First, the Minister turned my first point back on me, so let us hope that we get somewhere by the end of the debate. Secondly, in spite of protection against undue prominence, the amendments have the virtue of seeking an overall balance within programmes. Undue prominence has a reverse side, which is that any broadcaster could ignore issues that should be covered in their area. That is not the same thing at all, but it is as vital to local democracy as undue prominence.

Kim Howells: First, I pay tribute to my hon. Friend the Member for Broxtowe. I loved his expression about what happens once the lynch mob gets roping. I know exactly what he means and we must be careful on that issue. I also congratulate the hon. Member for
 Ceredigion (Mr. Thomas) on a great Aberdare expression. The hon. Gentleman said that the clause was a bit holey, meaning that it has holes in it. [Laughter.] I say to him that local radio—I guess that this is the best way of expressing it—is anything that is not a national licence. [Laughter.] That is defined in clause 239. There are currently just three analogue national licences and we believe that undue prominence remains the right level of constraint below national level.
 I turn to the amendments that were tabled by the hon. Member for North Devon. The hon. Gentleman told us that they would extend the broadcasting impartiality obligations to local analogue and digital radio services and cable and satellite radio services. The distinction between the obligations on the most powerful broadcast media—television services and national terrestrial radio services—and the provisions that would apply to local radio and cable and satellite radio replicate the distinctions in the current legislation, which I believe work very well. The amendment is the first challenge to that distinction that I know of since we began the process of consultation in early 2000. The hon. Gentleman must feel good about making the first challenge. 
 Television and national radio services are to retain strong impartiality obligations, whereas local and satellite and cable radio services have an obligation only to avoid giving undue prominence to the views and opinions of particular persons or bodies on matters of political or industrial controversy, or on public policy. That distinction reflects both the different powers of the two media—television is much more powerful than radio—and the distinct nature of local radio services. 
 Such local radio services are many and varied, as the hon. Member for Ryedale informed us. They operate at local and community levels, often with few staff. They need to engage with their audiences and deal with local issues in a lively way. The lighter obligation to avoid undue prominence, which extends across the output of such stations rather than within a programme or a series of programmes, as pertains to the impartiality requirement, is appropriate if we are not to risk stifling some of our small, exciting radio stations. Such stations may not have the capacity to achieve balance in a narrow time frame and they may need to stimulate debate and engagement with local issues. 
 I would like to inform the Committee that I did a phone in on Saturday night, sad creature that I am, on the future of Welsh rugby and the lines were completely jammed. I am glad to say that I did not hear a single impartial voice on that programme, least of all my own. 
 Anyway, I hope that that addresses at least some of the issues that the hon. Member for North Devon raised and that he will take my advice that we must be careful about the small stations, especially, that need to engage with the public who they serve in as lively and imaginative a way as possible. On that basis, I hope that he will withdraw the amendment.

Nick Harvey: I must say that I was rather disappointed by the Minister's response. His quaint vision of little local radio stations is all very well, but some are not that little—they are quite large. As he knows from lobbying on other clauses, there are people with aspirations to own a great number of such stations. If they succeeded in securing ownership of great chains of local radio stations throughout the country and if they wanted to pursue a particular political line through that chain, the total audience to which they would broadcast would be much larger than that of several smaller national stations that will be governed by regulations that apply to national radio.
 I am disappointed by the Minister's reply, but if this is the first time that the issue has been raised during the two and a half years in which he has consulted, I shall withdraw the amendment. However, we may wish to return to the issue at a later stage. I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn. 
 Question proposed, That the clause stand part of the Bill.

John Whittingdale: May I begin by raising a minor point before I address issues of greater concern? A triumph was achieved this morning, although the credit for that belonged more to my hon. Friend the Member for South Cambridgeshire than to me. Nevertheless, I moved the amendment that persuaded the Government to delete the word ''his'' and to replace it with ''their''. My attention is caught by line 17 of the clause, which currently states:
''The requirements of this section are . . . the exclusion, in the case television and radio services''.
 The Minister may find that the word ''of'' is omitted. I wonder whether I could move a manuscript amendment to insert the word ''of'' in order to allow me to claim yet another triumph by changing the Bill.

Roger Gale: Order. I do not want to disappoint the hon. Gentleman—actually I do. I shall not be led up the blind alley of manuscript amendments. I believe that there is a facility for making what is called a printing correction without moving a manuscript amendment. If the Minister will accede to that, I am sure that we will make further progress.

John Whittingdale: I am not sure that a printing correction will reflect my full credit for changing the Bill, but I suppose that it will have to do.
 Several aspects of the clause caught my eye. We could spend a huge amount of time discussing impartiality on television, but I do not propose to do that. Most of my constituents are convinced that most of the programmes that they watch, and especially those on the BBC, are biased. I shall not necessarily follow them down that road. We politicians should be able to defend ourselves and cope with anything that the ''Today'' programme throws at us. 
 One thing that has always caused me slight concern is reflected in subsection (4): the principle that impartiality can be satisfied across a series of programmes rather than in a particular programme. 
 That can lead to abuse, and strong complaints have been made that a single programme was not objective and presented a partial view. The broadcaster has come back and said, ''Well, yes, but we're going to do another programme in three weeks that will be part of the series and that will balance it.'' The problem is that chances are that the people who watched the first programme will not watch the second programme. I am worried that the provision could be abused in order to allow the broadcast of programmes that are not properly impartial. I merely flag that up as a worry that has been around for a long time. We certainly dealt with it in 1996 when the Broadcasting Standards Council was set up. It was not really addressed then, and I do not think that anything has changed since. There are still loopholes in the clause. 
 Another issue on which I spoke out at some length in 1996 was how to define impartiality. That is quite easy to do when dealing with news programmes; one can simply put on an alternative point of view. However, it is much harder when we leave the news and fact and enter the realm of fiction. Obviously, there is a long-standing tradition of playwrights reflecting political views in their plays. I would never suggest that the BBC or other broadcasters should not show left-wing drama, but I have a slight concern that the BBC, in particular, seems to show nothing but left-wing dramas.

Michael Fabricant: Does my hon. Friend recall that, at one point, the BBC would not show right-wing drama, namely ''The Falklands Play''?

John Whittingdale: My hon. Friend says ''At one point'', but I believe that that is still the case. ''The Falklands Play'' is finally being shown on BBC 4, where as few people as possible will see it.

Michael Fabricant: And BBC 2.

John Whittingdale: I accept what my hon. Friend says. However, it took more than 20 years for that programme to be shown. The only recent example of a very political drama shown on the BBC was ''The Project''. I accept that that programme was an extremely powerful indictment of the Government and the way in which the idealistic principles of so many hon. Members have been distorted and abused, particularly by the Labour Whips Office. However, it could hardly be described as right-wing drama; in fact, it was an attack on the Government from the left, and it accused the Government of a betrayal of socialist principles.

Nick Palmer: I am grateful to the hon. Gentleman for his defence of socialist principles. Would not he agree that there is a systematic pattern in that, regardless of the colour of the Government, there is relatively little pro-Government drama?

John Whittingdale: When the previous Government were in office, there seemed to be a lot of pro-Opposition drama. I have not noticed a great deal of pro-Opposition drama being shown under this Government.

Jim Murphy: It would be more a crisis than a drama. [Laughter.]

John Whittingdale: The issue is difficult, and it is not easy to legislate for it. That brings me back to my central premise, which is that there should be an avenue for complaints of that kind. When I spoke on the issue in 1996, I raised the matter of what people should do if they wished to complain about a lack of impartiality on the BBC. I said that it was outrageous that the BBC would act as judge and jury on such complaints and that the issue needed to be addressed. At least I can claim consistency, as that remains the case. Impartiality is very important, and it generates a huge amount of controversy. I suspect that most hon. Members have received letters complaining about various programmes being biased. There should be a properly independent process for adjudicating on those complaints. As I have said before, that is lacking in the Bill.

Kim Howells: I take on board everything that the hon. Gentleman says. At least he did not say, as a member of his party once told me, that BBC stands for ''Broadcast by Communists''. His comments were much more measured. ''The Project'', which I watched for the first 10 minutes, was so dull and boring that I watched ITV instead. I forget what was on; I think that it was a hospital drama. Anyway, it was much better than ''The Project''.
 The series provision mentioned by the hon. Gentleman is necessary to give broadcasters some flexibility, so that ''impartial'' does not have to equal bland. That is a real danger. The hon. Gentleman hinted that we could have a series of impartial programmes and end up with television that was completely unwatchable. There are enough strengths in the Bill to ensure that there will be impartiality—I would not wish to be responsible for pushing this legislation through if that were not the case. Impartiality is one of the cornerstones of democracy. 
 Question put and agreed to. 
 Clause 308 ordered to stand part of the Bill.

Clause 309 - Objectives for advertisements and sponsorship

Question proposed, That the clause stand part of the Bill.

John Whittingdale: We should pause on clause 309, because it is a history-making clause and it would be wrong for it to pass without comment. This is the first time that the Government have been required to print in a Bill that a clause is not necessarily compatible with the European convention on human rights. The Government have decided to continue the prohibition of political advertising, and, in the main, we agree with that decision.
 The subject has been debated by all parties. Like the Government, my party accepts that the prohibition of paid-for political advertising should continue. All parties are finding it difficult to raise money. Were we to have to spend money on television advertising, we would be even more destitute. Political advertising 
 would also be unfair to smaller parties that might find it even harder to raise money and match the advertisements shown by the bigger parties. 
 There are good reasons for the prohibition. However, when it considered the Bill, the Joint Committee on Human Rights questioned the Government's decision, despite a court judgment in Switzerland that upheld a complaint that a ban on political advertising was in breach of article 10. I understand that the Government's view is that the judgment does not necessarily set a precedent, and that a challenge in this country to the provision would not be upheld by the European Court of Human Rights. Nevertheless, there is obviously sufficient concern about the matter for the Government to make the statement in the Bill. 
 When the Joint Committee on Human Rights examined the Bill, it stated 
''We noted that this did not mean that there could be no controls over political advertising on television and radio, but only that any control must be shown to be justified by reference to the criteria . . . It was implicit in the Court's judgment that avoiding discrimination against less favoured or less well-funded viewpoints was a legitimate objective under Article 10(2). The question, in each case, was whether the restriction went further than can be shown to be necessary to achieve the goal. While observing that it would be a formidable challenge to put the compromise hinted at by the Court—a more circumscribed ban applied more discriminatingly—in statutory form, and accepting that there was some room to doubt the applicability of the Court's decision to the ban proposed in the United Kingdom, we''—
 that is, the Joint Committee on Human Rights— 
''recommended that the Government should seek restrictions short of an outright ban which could be shown to advance one of the legitimate aims in Article 10(2)''.
 The Joint Committee on Human Rights went on to say that 
''the Government does not explain, in the Explanatory Notes, why it has decided not to include such lesser restrictions but rather to risk incompatibility.''
 In the main, we agree with what the Government are trying to do. However, the Joint Committee on Human Rights has flagged up the fact that the Government could have taken an alternative route—to try to define the ban more narrowly, and thereby avoid a potential challenge under the European convention on human rights. It is incumbent on the Minister to tell us why they chose not to do that but decided instead to stand by the ban and risk a challenge to this part of the Bill under the Human Rights Act 1998.

Kim Howells: I am grateful to the hon. Member for Maldon and East Chelmsford (Mr. Whittingdale) for giving us an opportunity to explain this. He is right that the decision is important. As hon. Members will be aware, the Bill provides for Ofcom to have principle responsibility for regulating advertising in the broadcast media. We want standards applied to broadcast advertisements to be consistent with those applied to other forms of broadcast content and to ensure that citizens are protected from harm.
 That will be achieved by setting standards codes with which licensed broadcasters must comply, which happens at present. That will ensure that standards are maintained and that advertising remains legal, decent, 
 honest and true. Standards set by Ofcom under clause 307 must ensure that the inclusion of unsuitable advertising and sponsorship on television and radio is prevented. Clause 309 deals with the specific objectives. 
 The standards set by Ofcom will include general provisions about required standards for advertising and sponsorship and will permit Ofcom to prohibit particular advertisements and methods of advertising and sponsorship. The clause also provides for consultation between Ofcom and the Secretary of State on descriptions of advertisements that should not be included in programme services and on the forms and types of advertising and sponsorship that should not be used. As under the present system, it also provides the Secretary of State with a power to issue directions to Ofcom on any of those matters. 
 In addition to containing general provisions on advertising, the clause also contains specific provisions on political advertising. As the Secretary of State explained on Second Reading, the clause, and specifically the provisions maintaining a ban on political advertising in the broadcast media, is the reason why we have been unable to make a statement of compatibility with the Human Rights Act 1998. However, I reiterate that that does not mean that the Government believe that the Bill or the ban are incompatible with the Human Rights Act. The decision to proceed with a Bill containing such a provision was exceptional and was taken only after careful deliberation and a full examination of both the legal arguments and policy alternatives. 
 Successive Governments have maintained a complete ban on advertising of a political nature on television or radio. The Government intend to continue with the current ban, which, by the way, was supported by the Neill committee in its 1998 report on the funding of political parties. We also intend to define more precisely what is meant by ''political'' so that Ofcom may continue to use the broad reading of the word that existing regulators use, which is achieved through subsection (3). 
 However, a potential complication exists in the form of a judgment by the European Court of Human Rights against Switzerland, which maintained an apparently similar ban. The Joint Committee on Human Rights noted that when it examined the draft Bill. In response to the ECHR's judgment and the Joint Committee's concerns, we looked hard at the current ban to see whether minor changes could give greater certainty that the Bill was human-rights compatible, which the hon. Member for Maldon and East Chelmsford asked about.

Michael Fabricant: Will the Minister give way?

Kim Howells: Let me finish this little bit, and then I certainly shall give way.
 Unfortunately, any such change, and even a small change, would still allow substantial political advertising. I hope that there will continue to be cross-party agreement that that would not be desirable. The current ban safeguards public and democratic debate and protects broadcasters' 
 impartiality by denying powerful interests the chance to skew political debate.

Michael Fabricant: I would be grateful if the Minister explained the ramifications of being in breach by the European Court of Human Rights. Would we be likely to be fined? Who would pay and would the Bill or the clause fall into abeyance?

Kim Howells: That is a very good question, and I cannot give the hon. Gentleman any answers because I do not think that anyone has any, so far. There may be a bit of paper on its way and, if so, I shall return to that point.
 I was interested in what happens in other countries. A contact of mine who is concerned with the equivalent issue in France asked why we were worrying about the matter. She said that, in France, ''If someone feels strongly enough to challenge us, they will take us on, and if they do not, they can just shut up.''

John Greenway: That is a very healthy attitude.

Kim Howells: It is. Having examined all the facts, and having taken extensive legal advice, the Government concluded that strong arguments could be advanced in favour of the ban in the Bill being compliant with the ECHR.
 Members of the Committee will also have seen the full explanation given in the explanatory memorandum circulated on 10 December. I also note, and welcome, the strong support given to the ban in the Electoral Commission's recent report on party political broadcasting. With those explanations, I move that clause 309 stand part of the Bill. 
 Question put and agreed to. 
 Clause 309 ordered to stand part of the Bill. 
 Clauses 310 and 311 ordered to stand part of the Bill.

Clause 312 - Setting and publication of standards

John Greenway: I beg to move amendment No. 207, in
clause 312, page 269, line 26, leave out 'After publishing the' and insert 
 'In the preparation of any'.
 When we debated amendment No. 651 to clause 307, to which clause 312 refers, the Minister made it clear that there would be a standards code. This amendment seeks to change the tense of subsection (2) about publication of the draft code from the past to the present and future tense. We believe that there should be consultation when preparing the code. The clause should not exclude the possibility of the regulatory body taking soundings from interested parties prior to the publication of a draft code for the purposes of transparency about, for example, the appropriate timing of a consultation. 
 I am sure that, if the Minister re-reads subsection (2), he will agree that it is not sensible to say that there will be consultation only after the publication of the draft code, albeit that that is a draft. We believe that it 
 would make more sense for soundings to be taken during the preparation of the draft, and that that would make the process of reaching agreement about a code simpler for Ofcom.

Kim Howells: I appreciate what the hon. Member for Ryedale says, but I believe that his amendment places a further difficulty in the way of Ofcom acting expeditiously in undertaking its regulatory functions.
 In preparing a draft code, Ofcom will probably want to take soundings and respond to issues raised with it about previous regulatory practice and how it might need amendment. The most significant issues that concern Ofcom's various stakeholders are likely to emerge from that process, and will then be reflected in the draft code. It is that draft on which the Bill requires Ofcom to consult its licensees and others who have an interest. 
 That is a reasonable process, but it would be excessive to place a statutory obligation on Ofcom to go through two stages of consultation before setting standards, including changes to standards that could be comparatively trivial. That would work against Ofcom acting as a streamlined, modern and model regulator. 
 Under clause 3 of the Bill, Ofcom is already required to observe best regulatory practice, and that must apply to its consultation processes, among other things. However, the more bureaucratic Ofcom is required to be, regardless of the merits in any individual instance, the less effective and more costly the regulation will be for industry. On that basis, I hope that the hon. Gentleman will consider withdrawing his amendment.

John Greenway: The Minister has confirmed that there will be consultation and I do not want to labour the issue. I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn.

John Greenway: I beg to move amendment No. 208, in
clause 312, page 270, line 6, leave out 'professional organisations' and insert 'organisations, bodies and associations'.
 This is narrow point and I am amused by the extent to which some of the associations who are concerned about the wording of subsection (4)(c) are admitting to the fact that they are not sure that they are professional organisations, but are owning up to being trade associations. One thinks particularly of the Advertising Association, the Incorporated Society of British Advertisers Ltd. and the Institute of Practitioners in Advertising, which are all bodies that I am sure would appear to Ofcom to be qualified to give relevant advice in relation to the advertising of particular products. The amendment would make the clause refer to ''organisations, bodies and associations'', rather than to the narrower definition of professional organisations. In doing that we might give such persons the comfort that they are included in the list of people from whom Ofcom wish to take advice.

Kim Howells: In substituting a collection of ''organisations, bodies and associations'' for ''professional organisations'', the amendment would remove the requirement on Ofcom specifically to consult professional organisations that it regards as being qualified to give relevant advice in relation to the advertising of particular products.
 I shall try to convince the Committee that the amendment is unnecessary in ensuring that there is consultation with the relevant bodies. It would remove the specific requirement to consult professional organisations, which is designed to direct Ofcom towards particular bodies. Such bodies might, for example, have the expertise to advise Ofcom on the acceptability of claims for medicinal products in order to ensure that it complies with its statutory obligations, notably under the Medicines Act 1968 and the regulations implementing EC directives. The ITC retains a panel of eminent consultants who are appointed, following consultation with the leading medical professional bodies, to advise Ofcom on health and the medical aspects of advertising. Appropriate arrangements of that kind should continue and the amendment would weaken the obligation. 
 In relation to other interested parties, we believe that the Bill as it is drafted provides for the appropriate consultation. I know that some advertising organisations are concerned about the loss of the specific reference in the Broadcasting Act 1990 to 
''consultation with such persons or bodies appearing to the Commission—or Radio Authority—to represent, among others, advertisers as the Commission, or Authority, think fit.''
 I can confirm that we think that bodies, such as those that represent advertisers, would fall within the provisions of clause 312 (4)(a), which refers to persons—that includes bodies—who appear to Ofcom to represent the interests of those who must take account of the contents of the proposed standard for advertising and sponsorship. That provision embraces those who represent the interests of broadcasting licensees and advertisers. I hope that, having been reassured, the hon. Gentleman will withdraw his amendment.

John Greenway: That was an interesting response. If I heard the Minister correctly, he said that the concern that the amendment is intended to deal with has been directed at the wrong subsection; that subsection (4)(a) covers what we are hoping to achieve and that (4)(c) has a different meaning—the Minister seems to have misconstrued my understanding of that. The Minister suggested that certain professional organisations have particular expertise about particular products. I am sure that those with an interest in the subject will read this exchange carefully and will seek to return to the issue if they are not satisfied with the outcome of our debate. I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Clause 312 ordered to stand part of the Bill.

Clause 313 - Observance of standards code

John Greenway: I beg to move amendment No. 209, in
clause 313, page 271, line 8, leave out 'themselves'.
 When we were discussing clause 308, my hon. Friend the Member for Maldon and East Chelmsford suggested that a word was missing from subsection (1)(a). The amendment suggests that a word in subsection (2) of clause 313 is superfluous and could not only create ambiguity, but restrict the ability of Ofcom to fulfil its functions. Without ''themselves'', the meaning of the clause would seem at first sight to be the same. 
 The Bill creates the possibility for Ofcom to contract out its functions and, as the Committee is aware, broadcast advertising may be contracted out to an appropriate self-regulatory body that is approved by Ofcom. Subsection (2) suggests that only Ofcom itself can establish 
''procedures for the handling and resolution of complaints about the observance of standards set under section 307.''
 An essential prerequisite for effective self-regulation, as demonstrated by the Advertising Standards Authority model, is the handling and resolution of complaints by an independent self-regulatory body. The word ''themselves'' could prevent that from happening, even though Ofcom can contract out its functions in accordance with the provision. I hope that I have made myself clear. I look forward to the Minister's response.

Kim Howells: I was a little unsure about the significance of the amendment because I did not understand its material effect. However, I think that the hon. Member for Maldon and East Chelmsford has explained it very well. It would remove the emphasis in the clause that distinguishes the provisions of subsection (1)—which require there to be conditions in programme service licences requiring that procedures are established and maintained for the handling of standards complaints by licensees—from subsection (2), which makes it clear that Ofcom itself should also establish such procedures.
 As stated in the communications White Paper, broadcasters should have the primary responsibility for handling complaints and for ensuring that they remain accountable to their audiences. However, there are complaints on which Ofcom should be able to act expeditiously, for example, in relation to a misleading advertisement when Ofcom needs its own procedures. Similarly, if a member of the public complains to Ofcom, it must have a procedure for handling that complaint whether it be by passing it to the broadcasters to deal with or taking regulatory action itself, notably when licence conditions seem to have been seriously breached. 
 The word ''themselves'' does not preclude a move towards self-regulation, effected by means of a contracting-out order under clause 1. Under such an order, a function of Ofcom can be contracted out to another party, but Ofcom itself remains responsible for the effective discharge of its statutory function. 
 Given that explanation, I hope that the hon. Gentleman understands the clause more clearly—I certainly do—and that he will withdraw the amendment.

John Greenway: To those listening, it must seem as though we are arguing on the head of a pin. Once again, our understanding of the clause is slightly different from the Minister's explanation of it. The best thing to do in the circumstances is to reflect on his reply I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Clause 313 ordered to stand part of the Bill. 
 Clause 314 ordered to stand part of the Bill.

Clause 315 - Standards with respect to fairness

Nick Harvey: I beg to move amendment No. 523, in
clause 315, page 272, line 8, leave out subsection (3).
 The Bill takes the present procedures for considering complaints of unfairness in broadcasting and carries them forward, with the procedures currently used by the Broadcasting Standards Commission that will be adopted by Ofcom. Subsection (3) introduces into the existing BSC procedures under the 1996 Act new powers that, if implemented, could prove to be draconian. The new provisions concerning the disclosure of documents to Ofcom are too widely drawn and do not take account of well-established legal principles. 
 Subsection (3) states that, when considering a fairness complaint, Ofcom shall be provided with 
''such other things appearing to OFCOM to be relevant to their consideration of the complaint, and to be in the possession of the relevant person, as may be specified or described by OFCOM''.
 This leaves the obtaining of documents and other materials solely at Ofcom's discretion and does not take account of legitimate protection, such as legal privilege that is recognised by all statutes that deal with the disclosure of journalistic material, from the prevention of terrorism legislation to the Data Protection Act 1998. 
 The new provision does not take account of confidential material that the broadcaster may not wish to disclose because of undertakings of confidentiality to a source. A protection under section 10 of the Contempt of Court Act 1981 should be reflected in the subsection. Even the police do not have such wide powers to obtain journalistic material. The test in the Police and Criminal Evidence Act 1984 entitles the police to satisfy a circuit judge that journalistic material should be disclosed only when it is relevant and likely to be of substantial value to their investigation. In civil cases when parties to litigation are locked together, the disclosure rules require that documents should be disclosed only when a party relies on them, when they would adversely affect his or her own case, another party's case or, indeed, support another party's case. They must be of eminent importance to a case. It is not clear what the rationale is for giving Ofcom these new and seemingly 
 draconian powers. What deficiency have the Government identified in the way in which the BSC works at the moment, which makes them want to give wide-ranging new powers to its successor body Ofcom?

Kim Howells: As I am sure the hon. Gentleman will admit, the consideration of fairness complaints by the BSC has proved to be an effective means of redress for individuals and groups that believe that they have had their privacy unjustifiably infringed or have been unfairly represented. The right to pursue an inexpensive means of redress will be retained as an important remedy for those directly affected by a programme. The amendment would limit Ofcom's powers to obtain information in relation to the consideration of fairness complaints by deleting the requirement in clause 315(3) for the licence holder—the BBC or the Welsh authority—to provide Ofcom with additional information that appears to Ofcom to be relevant to its consideration of a fairness complaint. We included such a provision because experience has suggested that the current information requirements, which are contained in section 115 of the 1996 Act, do not go far enough. Under those requirements, the relevant person—the licence holder, the BBC or the Welsh Authority—must provide Ofcom with a copy of the relevant programme, a transcript of the programme and copies of any correspondence between the relevant person and the complainant or person affected. However, in practice, the BSC has found that, when considering fairness complaints, it would also be useful to obtain untransmitted footage—footage that did not make it into the final programme. Such footage could be relevant for all sorts of reasons—for example, to answer complaints of unfair editing and unfair presentation of material facts, or to provide evidence of doorstepping or other infringements of privacy.
 I do not know how the hon. Member for North Devon feels about that, but I feel that the context—to explain how material was obtained and whether it was as a result of doorstepping or infringements of privacy—should be taken seriously. The general public are worried about doorstepping and, because of telephoto lenses, about invasions of privacy. 
 It may also be necessary for Ofcom to request copies of documents if the broadcaster referred to the documents, either in the programme or in a statement in response to a complaint, but then failed to produce them, or if the broadcaster failed to produce documents, known to be in its possession, that it felt might be damaging to its case. The latter situation has arisen on a number of occasions. 
 Based on our experience and the advice that we received from BSC, we decided to include a further provision in the Bill to say that Ofcom should be provided with other items in the possession of the relevant person that appeared to it to be relevant to the consideration of the complaint. In making such requests, Ofcom will have to act in a reasonable and proportionate manner. The hon. Member for North Devon appeared to be concerned that the provision did not offer sufficient protection in relation to legal professional privilege and the right of journalists to 
 protect their sources. That seemed to be at the heart of his amendment, and I see that he is nodding his head. We do not consider his concern to be well founded. Legal professional privilege is a well established common law principle. Indeed, it was recently described by the House of Lords as a fundamental human right. There is no need to include an additional express protection in the Bill. 
 The protection of journalists' sources is a fundamental aspect of press freedom. I am satisfied that sufficient protections exist to which Ofcom must have regard—in particular, under article 10 of the ECHR and, in domestic law, under the Human Rights Act. There is no need to repeat those protections in the Bill. In various contexts—including the Joint Committee on Human Rights—we have expressed the view that, where a proposed safeguard is co-extensive with the protection guaranteed by the Human Rights Act, the safeguard need not be repeated in a subsequent Bill. The Human Rights Act applies to all legislation and Ofcom, as a public authority, is obliged to have regard to the Act when carrying out its functions. It would be confusing and superfluous to repeat obligations that are already in the Human Rights Act. I hope that, with those reassurances, the hon. Gentleman will withdraw his amendment.

Nick Harvey: I am grateful to the Minister for his reply. He gave a few examples of things that he thought Ofcom might wish to get its hands on—in particular, he mentioned untransmitted footage. His argument was good. However, it is a pity that the Government could not have pressed the BSC a little on some specific examples in order to make a list of material that they thought would, from time to time, be necessary. Instead, the Government have used the catch-all phrase:
''such other things appearing to OFCOM to be relevant''.
 The Minister spoke about the Government's belief that protections exist elsewhere in the law. His statement this afternoon, which will be on the record, was helpful. I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn. 
 Clause 315 ordered to stand part of the Bill. 
 Clause 316 ordered to stand part of the Bill.

Clause 317 - Proscription orders

Question proposed, That the clause stand part of the Bill.

John Whittingdale: It is worth pausing to hear a little more about the clause, which is about the proscription of foreign television services. When we were debating the Broadcasting Act 1996, one of the great controversies was about a channel called Red Hot Dutch. My hon. Friend the Member for Salisbury (Mr. Key) told me that when he was Parliamentary Under-Secretary of State for National Heritage, he once found in his ministerial box six videotapes of Red Hot Dutch, which he was expected to spend his weekend watching.

Kim Howells: I am very grateful for that historical perspective, because I once found some tapes, too. Unfortunately, they were on my desk; I did not remove them from the room. They were of Satisfaction Channel Television, or something like that. I understand the dilemma; should one take the tapes from the Department or leave them there?

John Whittingdale: I am afraid that I am unable to tell the Minister how his predecessor resolved that dilemma. I think that he took the tapes home, but I would not like to say so without consulting him first.
 Things have moved on since then. At that time, Red Hot Dutch attracted a lot of controversy, but I think that it no longer broadcasts. However, on satellite, there are about a dozen channels called Red Hot, including Red Hot Wives and Red Hot Euro. I hasten to add I do not know if they are from the same company because I have never seen them; they are encrypted, and to view them one has to subscribe and get a pin number and so on. As we said this morning, it seems that such material is now more prevalent. 
 The Government have said in clause 317 that they wish to retain powers to proscribe any foreign services that 
''offends against taste and decency'',
 or falls into one of the several other categories listed. However, the Bill goes on to say that the section applies to those content services 
''provided otherwise than by being broadcast from a satellite''.
 That is not so much a loophole and a glaring chasm. I suspect that the truth is that there is not much that the Government can do about channels broadcast from a satellite. Even if the Astra satellite does not carry such channels, it is easy to get satellite dishes that can be moved around until they find a satellite that does. 
 Although I fully accept that the Government want to prevent the most extreme kinds of material being available, that is increasingly difficult to do for technological reasons. Why does the Minister think that it is necessary to maintain harsh proscriptions for the various delivery mechanisms over which we have control when anyone who really wants to see particular channels will be able to do so without too much difficulty? They will simply subscribe to a service over which the Minister does not have control.

Kim Howells: The clause applies to television and radio licensable content services provided otherwise than by satellite—satellite services are dealt with under section 177 of the 1990 Act—and
''(b) digital television programme services; 
 (c) digital additional television services . . . 
 (e) digital sound programme services; and 
 (f) digital additional sound services''
 where they are not licensed in the UK. 
 The hon. Gentleman will be interested to know that proscription orders have had a significant effect in the past. In the 1990s, for example, five out of six proscribed direct-to-home foreign satellite broadcasters ceased to operate. That was partly, at least, because of the economic effects of the proscription orders.

Richard Allan: The clause will not apply to satellite broadcasters. Is there any evidence of terrestrial broadcasters, which presume the clause will cover, having orders issued against them? What scope will the clause have?

Kim Howells: I shall try to explain that. Clause 317 and the following related clauses—that should give a clue to the explanation—close a loophole in the proscription powers given to the Secretary of State in 1990 Act. Under that Act, proscription applies to foreign satellite broadcasters whose services can be received in the United Kingdom without having to be retransmitted through a UK platform. Viewers gain access to such material by subscribing to the relevant services directly and using appropriate decrypting equipment. Since 1990, the development of UK digital multiplexes and the increasing choice offered by UK cable operators means that a foreign broadcaster might want regularly to retransmit foreign-originated pornographic or other unacceptable content.
 Clause 317 sets out the criteria against which Ofcom would judge the acceptability of programme content. If it notified the Secretary of State, she would proceed, as now, under the current satellite proscription procedures. The Secretary of State has to have particular regard to the UK's international obligations, primarily under the TVWF directive, where the only exceptions to the duty to allow the unimpeded retransmission of another member state's broadcaster are on the grounds that it carries material seriously harmful to minors or incites hatred on the grounds of race, sex, religion or nationality. 
 The directive lays down a procedure to be followed that involves consultation with the broadcaster and the national broadcasting authorities of any member state in which the potentially offending service is licensed. If those consultations do not resolve the problem, the Secretary of State may make a proscription order, which is subject to negative resolution procedure. Thereafter, the European Commission must rule on whether the measures are compatible with European Community law. If not, they must be withdrawn forthwith. 
 The consequences of the proscription order are the subject of the next clause, which is the proper place to deal with them. In the mean time, I commend the clause to the Committee.

Andrew Lansley: I have been trying to work through the Broadcasting Act 1990, section 177 of which provides a power to the Secretary of State to proscribe foreign satellite services, so I apologise if I have missed something. Does the legislation also contain a provision that extends to Ofcom the same relationship with foreign satellite services as intended under clause 317 in relation to others? Is Ofcom providing the same role in relation to foreign satellite services?

Kim Howells: Indeed, that is my understanding. Additionally, the clause closes a loophole, as I have tried to describe to the Committee.

Richard Allan: I do not want to continue the debate for too long, but I want to clarify my understanding. A
 cable company in the UK could carry a Dutch channel, for example, and transmit it to viewers in the UK, and as it would not come through a satellite, it would not be banned. If Ofcom ruled against the programming on grounds of taste or decency, the UK company could appeal to the European Commission for unfair restraint under the television without frontiers directive. The Commission's ruling would then be supreme and could overrule Ofcom. Will the Minister confirm that that understanding is correct?

Kim Howells: I confirm that that is my understanding.
 Question accordingly agreed to. 
 Clause 317 ordered to stand part of the Bill. 
 Clauses 318 to 320 ordered to stand part of the Bill.

Clause 321 - Party political broadcasts

Andrew Lansley: I beg to move amendment No. 591, in
clause 321, page 277, line 9, at end insert— 
 '(1A) The regulatory regime for every television licensable content service licence and every radio licensable content service licence shall include— 
 (a) conditions requiring the inclusion in that service of party political broadcasts and of referendum campaign broadcasts, if so prescribed under this section; and 
 (b) conditions requiring that licence holder to observe such rules with respect to party political broadcasts and referendum campaign broadcasts as may be made by OFCOM.'.

Roger Gale: With this it will be convenient to discuss the following:
 Amendment No. 592, in 
clause 321, page 277, line 13, at end insert 
 ', having regard to the number of seats being contested by each party in relation to the number of seats being contested in the election;'.
 Amendment No. 593, in 
clause 321, page 277, line 15, after 'broadcasts', insert 
 ', having regard to levels of proven electoral support;'.
 Amendment No. 594, in 
clause 321, page 277, line 18, at end insert— 
 '(2A) The rules made by OFCOM for the purposes of this section may make further provision prescribing which channel and service, including a relevant service of the BBC, is to be required to include party political broadcasts or referendum campaign broadcasts as appropriate; and such provision may be made by reference to such thresholds, based on calculation of audience share, as OFCOM may prescribe, having regard to the views expressed— 
 (a) by the Electoral Commission; 
 (b) by licensed public service channel providers; 
 (c) by holders of licences for a television or radio licensable content service in respect of which an obligation to include party political broadcasts or referendum campaign broadcasts is proposed; or 
 (d) by the BBC.'. 
Amendment No. 590, in 
schedule 12, page 387, line 18, at end insert— 
 '2A (1) It shall be the duty of the BBC to include— 
 (a) party political broadcasts, and 
 (b) referendum campaign broadcasts 
 in each relevant service. 
 (2) In meeting its duty, the BBC shall have regard to— 
 (a) any views expressed for the purpose of this paragraph by the Electoral Commission; and 
 (b) any rules made by OFCOM under section 321. 
 (3) The BBC's duty under this paragraph is to have effect subject to sections 37 and 127 of the Political Parties, Elections and Referendums Act 2000 (c.41) (only registered parties and designated organisations to be entitled to party political broadcasts or referendum campaign broadcasts). 
 (4) In this paragraph— 
 ''relevant services'' means those television and radio services which are prescribed as such in accordance with the provisions of section 321(2A), 
 ''designated organisation'', in relation to a referendum, means a person or body designated by the Electoral Commission under section 108 of the Political Parties, Elections and Referendums Act 2000 in respect of that referendum, 
 ''referendum campaign broadcast'' has the meaning given by section 127 of that Act.'.

Andrew Lansley: My hon. Friend the Member for Maldon and East Chelmsford took us into the human rights aspects of the ban on political advertising. The amendments substantially reflect the recommendations of a recent report by the Electoral Commission on the subject of party political broadcasts. It is useful just to make the connection. The ECHR case, to which the Minister and my hon. Friend referred, involved a complete ban on political advertising. It was not like the ban in the United Kingdom where we ban political advertising but political parties have what would be described as free and unmediated access, especially at election times, to broadcast media for political purposes.
 The two cases would not necessarily be comparable, which is why it does not necessarily follow that the ECHR decision would be carried through in the same light here. Indeed, the Electoral Commission takes the view that it is possible that our current system would survive scrutiny if it were challenged in the same way as the previous ECHR case to which my hon. Friend referred. The report says: 
''Any restriction on freedom of expression must be justified under Article 10(2) of the ECHR. Not only must the restriction be defensible in substance, but there is also a requirement that it be 'prescribed by law'. If the regime of free and unmediated broadcasts is to be robust as a counterbalance to the ban on paid political advertising, it should satisfy the same requirement. We doubt whether the existing arrangements for free broadcasts are sufficiently clear, formalised and predictable, as expressed in law, to satisfy this requirement as it has now been elaborated in the Strasbourg case law.''
 The report then makes a number of recommendations about party political broadcasts that would make matters clearer and more predictable. Prescribing it in law would provide a much more certain remedy against the risk of a challenge to a ban on political advertising in the United Kingdom. We can see the merit in using the first available legislative vehicle to try to meet the Electoral Commission's recommendations. The amendments are substantially designed for that purpose, but it may be helpful if I quickly explain what they do and do not do. 
 One of the Electoral Commission's proposals was that the current broadcasters committee should be the 
 subject of a statutory duty on Ofcom to include the establishment of a committee composed of the broadcasters. As the Minister will recall, we have discussed the extent to which Ofcom should establish committees, and if we go down the path of requiring such a committee in statute we set up a new non-departmental public body with all that that implies. There is a power under the Ofcom Act for Ofcom to set up committees, so there would be no difficulty about doing this. I hope that the Electoral Commission would accept that there is no necessity for such a statutory duty. 
 I come now to the substantive recommendations. The report says: 
''We recommend that regulation of the obligation to carry PPBs should be the same for all broadcasters, and that the BBC and S4C be brought within the scope of Ofcom for this purpose.''
 I have not quite carried that into the amendment. Amendment No. 594 is designed to allow Ofcom to determine what are the relevant services of the BBC. To that extent, the discretion that is currently given to the BBC under the agreement to determine what the services are, in practice in line with the discussions in the broadcasting committee, would be removed from the governors and would subject to a decision or rules made by Ofcom. 
 Amendment No. 590, which relates to schedule 12, would place the obligation on the BBC and set out its requirements in respect of relevant services. As one would expect, it would do no more than apply the same regime to the BBC as would apply to the independent television companies. The amendment would not exactly allow Ofcom to set out these matters. It would give Ofcom greater power over the BBC and S4C services that carried party political broadcasts, but it would leave the BBC and the Welsh authority some discretion as to how they carried that forward. 
 Amendments Nos. 592 and 593 directly reflect specific language in the Electoral Commission report: 
''We recommend that the legislation be strengthened to include criteria to which the regulator—''
 Ofcom for these purposes— 
''should have regard in making rules regarding qualification for PPBs and length and frequency of PPBs.''
 That is the qualification whereby political parties should have party political broadcasts. 
 Amendment No. 592 reflects the Electoral Commission's suggestion about 
''having regard to the number of seats being contested''.
 Amendment No. 593 reflects its suggestion about 
''having regard to levels of proven electoral support.''

Simon Thomas: I accept the hon. Gentleman's point that a political party must pass thresholds, but will he accept that the current arrangements, some of which I understand are voluntary, allow that issue to be dealt with differently in, for example, Wales, Scotland and Northern Ireland? A party such as mine, which stands for election only in Wales, can therefore have a party political broadcast in Wales and nowhere else. The situation is similar for the Ulster Unionists in Northern Ireland and for Tommy Sheridan in
 Scotland. It is important that the hon. Gentleman take that on board. We should not pass any amendments that would raise the threshold for political parties that are eligible within regions of the United Kingdom.

Andrew Lansley: I am grateful to the hon. Gentleman and I think that I can satisfy him on that point. I see nothing in amendment No. 592 that would preclude Ofcom having regard to the number of seats being contested by a party in Wales in an election in Wales. This is a competent amendment from the hon. Gentleman's point of view.
 Amendment No. 591 and aspects of amendment No. 594 are also designed to reflect the Electoral Commission report: 
''We consider that in the interests of reaching as wide a spectrum of electors as possible, PPBs should not be restricted to a narrow type of broadcaster. We recommend that any TV or radio channel which achieves prescribed audience reach and share thresholds should be required to include PPBs in their schedules. The requirement should apply to all UK broadcast channels for all major elections.''
 Hon. Members will observe that I have not attempted to reflect precisely that terminology in amendment No. 594. I have left it more open by talking about the prescription of relevant services or which services and channels should carry party political broadcasts 
''by reference to . . . thresholds, based on calculation of audience share''.
 I have not reflected other thoughts that one might have. It is reasonable to argue that this should not simply be a matter of audience share. The questions that the Electoral Commission discusses in relation to the character of a particular channel, or the extent to which a channel is not a UK channel but has its origin elsewhere, might indicate that there would be different thresholds for the inclusion of party political broadcasts on some channels as compared to others. Audience share would not necessarily be the only consideration. Although I am trying to reflect the Electoral Commission's view, I must confess that I am not sure that the commission itself has quite got to the point that we need to reach. 
 Amendment No. 591 has the commendable purpose sought by the Electoral Commission of making it possible for the inclusion of party political broadcasts to be required on services other than public service broadcasterson all licensed television or radio services. 
 I have explained the purpose of the amendments, but they were tabled because of the Electoral Commission's approach to the Government and the Committee, which was very late in the day. I recognise that there is a debate to be had, not least in relation to the question of a threshold in audience share, and the difficulties associated with getting the drafting right. However, by tabling the amendments on the same day that I received the Electoral Commission's report, I hope to demonstrate that it is not inconceivable for us to take action during the passage of the Bill to achieve the commission's recommendations. There would be little point in us having had an Electoral Commission for the past couple of years if we did not take early and 
 substantial notice of its recommendations and try to include them in the Bill at the first available moment.

Kim Howells: I congratulate the hon. Gentleman on basing his speech on material that arrived very late. The Electoral Commission's recommendations comprise an impressive body of work that we will take seriously.
 Hon. Members will be aware that the question of the allocation of broadcasting time for political broadcasts is always a matter of lively debate. Nevertheless, the arrangements have proved reasonably successful for almost 80 years. The hon. Member for Ceredigion intervened on the hon. Member for South Cambridgeshire to point out that the arrangements can sometimes be complicated, which is quite right. Any changes need careful consideration. 
 I am sure that the hon. Member for South Cambridgeshire will correct me if I am wrong, but the amendments appear to have three main effects. They would bind the BBC more closely to Ofcom's policies in relation to the provision of political broadcasts. As the hon. Gentleman knows, that would be contrary to our general policies for the BBC, whereby the relationship between the BBC and Ofcom is determined by provision in the BBC agreement. Specifically, the BBC's governors should have responsibility for maintaining the BBC's reputation for impartiality. Whatever our individual day-to-day irritations related to that impartiality, it is internationally recognised as having been second to none over the past century. 
 The BBC is already required to have regard to the views of the Electoral Commission in determining its policies for political broadcasts. Similarly, Ofcom is required to have regard to the views of the commission when making rules under clause 321. Despite the hon. Gentleman's comments, I am not convinced of the need to require the BBC by statute to also have regard to the rules of Ofcom. 
 We specifically provide in the agreement that the BBC shall have an obligation to include political broadcasts in future. It is therefore right that the BBC and Ofcom should co-operate closely on the matter, just as the BBC does with the present regulators. However, the subject is so important to our democracy that a range of views and judgments may contribute to detailed decisions. 
 The amendments would also extend the obligation to carry political broadcasts beyond public service broadcasters to cable and satellite broadcasters, but curiously, unless the hon. Gentleman corrects me, not to digital terrestrial broadcasters. The amendments would establish in statute certain criteria for determining which parties should be offered broadcasts and the length and frequency of those broadcasts. The criteria already form part of the policies of the BBC, ITC and Radio Authority. There should be a very good reason for providing a statutory basis, which has not been needed before, and for limiting the bodies' flexibility for responding to individual and often fast-moving circumstances in 
 ways that ensure that they meet their overriding obligations for impartiality. 
 Several arguments for placing the criteria on a firmer statutory footing were put forward in the recommendations on party political broadcasts that were published by the Electoral Commission as recently as 14 January, as the hon. Gentleman told us. I welcome the report, which gives a detailed analysis of arrangements for party political broadcasts. The Government take the recommendations seriously and will want to consider them fully. 
 We shall want to examine in greater detail the implications of the recommendations and the extent to which they would secure a more fair, robust and defensible element of our democratic process. We shall want to bring forward our detailed proposals and test them in consultation. I reassure the hon. Member for South Cambridgeshire that we shall bring any proposals for legislative change before the House. 
 We do not believe that we should adopt the amendments or that the major changes proposed by the Electoral Commission should be adopted into law without proper deliberation and Government consultation. There is no immediate urgency because terrestrial channels still attain an audience share of about 80 per cent. On that basis, I hope that the hon. Gentleman will withdraw the amendment.

Andrew Lansley: I do not want to delay the Committee and I entirely take the Minister's point. He is probably right that I did not include digital terrestrial, but I am content with that because, as I freely admitted, I was trying to demonstrate that we should respond to the Electoral Commission report in substance through this Bill rather than leaving things alone and hoping that everything will work out in the end.
 I am especially content about the situation with regard to the BBC. There is a point to trying to include the BBC but if we retain the manner in which the BBC legislated for and regulated, it would be consistent for party political broadcasts to travel along with that. 
 I hope that the Government will find time to undertake work to reflect the Electoral Commission's amendments either on Report or in another place. I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn. 
 Clause 321 ordered to stand part of the Bill.

Clause 322 - Retention and production of recordings

John Whittingdale: I beg to move amendment No. 286, in
clause 322, page 277, line 41, after 'programme', insert 
 '(including any subtitling or other services relating that programme)'.
 The clause addresses the requirement to retain recordings in order to allow adjudication on a future complaint, which is sensible. The amendment is very simple and would allow subtitling or other services to be retained so that they could be viewed. Technology 
 is changing so fast that many associated services, such as interactivity, may be provided with linear broadcasts. It is practically and economically difficult to obtain a recording in sound and vision of every possible combination of viewer experience, which is arguably required under the present licence. The obligation probably needs updating so that it is not to retain a recording of a particular programme including all possible non-linear elements in sound and vision, but to retain a recording of a linear programme in sound and vision and to retain records of all other non-linear elements in an appropriate form. That would allow a broadcaster to reproduce any element of what a viewer had seen on demand.

Kim Howells: Programme-related services accessible by audiences will usually form part of the programme material that Ofcom would expect to be retained, and clause 322(1) refers to the service licensed by the Broadcasting Act licence. We agree that it might be necessary to include subtitling because one could imagine that offence could be caused by an error of the subtitling of an inoffensive audio stream. However, the current provisions provide for that as subtitling is clearly part of the programme. We do not want to extend the obligation to programme-related material that is not part of the licensed service. Indeed, other related services might fall outside the licensable service—for example, through an internet connection—and it would not be appropriate to require them to be retained.
 I hope that the hon. Gentleman will agree that the amendment is unnecessary and, to the extent that it would have any effect, it could only encourage Ofcom to require the retention of all programme-related material for the same period as the core programme material, regardless of the value for regulatory purposes or costs to licensees. On that basis, I hope that he will withdraw the amendment.

John Whittingdale: I am grateful for the Minister's comments. He has dealt with my main concerns. I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn.

Simon Thomas: I beg to move amendment No. 192, in
clause 322, page 278, line 6, at end insert— 
 '(d) It shall be allowable for a service provider to enter into a contractual obligation with a third party in pursuance of compliance with paragraph (a) above.
 The amendment would ensure that it was permissible for a broadcaster to make arrangements for the retention of its programmes by agreement with a third party. In its early days, S4C was a bit of a shoestring operation and did not have facilities to retain its own programme logs, so it sent them to the National Library of Wales in Aberystwyth. I know that because I catalogued them as they came in. I am pleased that that arrangement is still continuing. S4C's output is available in the library, which means that members of the public, and not only Ofcom, can see in the interests of research, or for other reasons, a programme that has been broadcast by S4C. 
 Legal documents are often not retained by legal practices, but are sent to a third party for safe storage. It is important that data, particularly old-fashioned 
 tape, is stored properly. We use copper rooms to protect such data from electro-magnetic interference. The amendment would make sure that a broadcaster who enters into a relationship with S4C or other channels and uses a third party to retain copies of its programmes remains within the law. In that way, there will not have to be physical retention of the programmes either within the curtilage of the broadcaster or his staff, so long as the programmes are retained in such a way that they can be made available to Ofcom for any purpose or investigation. I hope that the Minister can give us the appropriate assurances.

Kim Howells: As I have made clear in relation to functions of Ofcom that it might contract out under clause 1, it remains responsible for the effective discharge of the function, even though it may have contracted with another body to undertake the function on its behalf. The hon. Member for Ceredigion referred to the National Library of Wales at Aberystwyth and its copper rooms. Ofcom may look to such a body to undertake such functions on its behalf.
 Similarly, a broadcaster or licensed programme service provider under the Bill can discharge through a contracted third party the requirement on it to retain recordings of programmes to facilitate Ofcom's monitoring for its regulatory purposes. The amendment is not needed. It does no more than call into question whether in other circumstances, when there is no specific provision, functions can be contracted out to third parties. I thought that the hon. Gentleman would table an amendment—God knows, I should not be drawing attention to the matter—on the length of time that it sometimes takes for a tape or other form of recording to be handed over. From matters in which I have been involved, I know that that can be a problem. I have no doubt that he will raise such issues on Report. In the meantime, I hope that he will withdraw the amendment.

Simon Thomas: I thank the Minister for being extraordinarily helpful. He has clarified the matter. I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn.

John Whittingdale: I beg to move amendment No. 633, in
clause 322, page 278, line 10, leave out 'ninety' and insert 'forty two'.
 The amendment deals with the time for which records must be retained by broadcasters. There is no reason for having a difference between the period for which television broadcasts are retained and the period for which radio broadcasts are retained. Previously, the time for which records of television broadcasts had to be kept was increased from 60 days to 90 days. That was to satisfy the Broadcasting Standards Commission, which argued that its smaller staff meant that it could not deal with complaints as quickly as the ITC. That will not be the case with Ofcom so the historical anomaly is no longer justified. The time for retaining a television broadcast should be 
 the same as for a radio broadcast. We suggest that that time should be 42 days.

Kim Howells: For cable and satellite channels, the ITC requires tapes to be kept for only 60 days. For higher profile and more popular public service channels, the ITC retains the 90-day requirement. The 42-day limit applies to radio, but that reflects the different nature of radio, which tends to operate on a rolling and generally ephemeral basis, rather than by means of programmes that are likely to be repeated or made more widely available.
 Occasionally, television complaints arise during the period between 42 and 90 days. That is more likely to happen with complaints to do with unfairness or unwarranted invasions of privacy. In such cases, the aggrieved party may not have seen the programme. It may therefore be a little time before they are alerted to the problem by acquaintances or through press coverage. 
 There are advantages in retaining flexibility. As hon. Members will be aware, we expect broadcasters to handle the majority of complaints while Ofcom concentrates on serious breaches where immediate action may be required. The complaints that Ofcom deals with are more likely than the others to arise in the period between 42 and 90 days. The experience of the ITC is that most complaints that arise during that period are because the complainant is dissatisfied with a broadcaster's handling of the complaint. 
 The longer period provides useful flexibility when dealing with infrequently monitored foreign language channels that are broadcast from the United Kingdom. Ofcom may have to require such channels to keep tapes for longer than 42 days. 
 With those reassurances, I hope that the hon. Gentleman will withdraw his amendment.

John Whittingdale: I shall resist the temptation to enter into a debate on the ephemeral nature of radio. However, I am grateful to the Minister for explaining why the Government believe that it is necessary to have a differentiation. I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn.

Kim Howells: I beg to move amendment No. 609, in
clause 322, page 278, line 16, leave out 'Chapter' and insert 'Part'.

Roger Gale: With this it will be convenient to discuss Government amendments Nos. 610, 612, 611 and 613 to 617.

Kim Howells: As I explained in the letter that I sent to hon. Members of the Committee, these amendments correct an omission in the Bill relating to the provisions that roll forward current legislation for the recording of broadcasts by the ITC, Radio Authority and Broadcasting Standards Commission, for the supervision of programmes, and for the retention of recordings by broadcasters, in order that the regulators are able to undertake their regulatory functions.
 Amendment agreed to. 
 Amendment made: No. 610, in 
clause 322, page 278, line 17, leave out 'Chapter' and insert 'Part'.—[Dr. Howells.] 
Clause 322, as amended, ordered to stand part of the Bill. 
 Clauses 323 and 324 ordered to stand part of the Bill.

Clause 325 - Promotion of equal opportunities and training

Andrew Robathan: I beg to move amendment No. 634, in
clause 325, page 279, line 3, leave out subsections (1) and (2).

Roger Gale: With this it will be convenient to discuss the following:
 Amendment No. 635, in 
clause 325, page 280, line 10, leave out 'to (3)'.
 Amendment No. 636, in 
clause 325, page 280, line 23, leave out '(6)' and insert '(4)'.
 Amendment No. 637, in 
clause 325, page 280, leave out lines 34 to 38.
 Amendment No. 638, in 
clause 325, page 280, line 43, leave out paragraph (a).
 Amendment No. 639, in 
clause 325, page 280, line 45, leave out '(7)' and insert '(5)'.
 Amendment No. 640, in 
clause 325, page 280, line 46, leave out '(8)' and insert '(6)'.

Andrew Robathan: Clause 325 deals with the worthy aim of the promotion of equal opportunities and training. I am sure that no one would disagree with the spirit of the clause. However, it duplicates other legislation and places another unnecessary burden on business.
 Our amendments would delete equal opportunity requirements related to sex, race and disability, because there is a comprehensive set of regulations covering those requirements, which must, under UK law, be met by every employer in the UK. It is therefore unclear why the communications sector should be subject to additional primary legislation on that matter, nor why a Bill that is claimed to be de minimis in approach should seek to duplicate provisions that already exist in common law. 
 I shall list some of the legislation that covers equal opportunities: the Employment Act 2002; the Maternity and Parental Leave (Amendment) Regulations 2002; the Statutory Paternity Pay and Statutory Adoption Pay (Weekly Rates) Regulations 2002; the Paternity and Adoption Leave Regulations 2002; the Sex Discrimination Act 1975, as amended in 2002; the Race Relations Act (Amendment) 2000; the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002; the Flexible Working (Procedural Requirements) Regulations 2002; the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000; and the Working Time Regulations 1998 as amended in 2002. I have left out one or two, in the interests of brevity. 
 Companies want to get on with their business and to thrive for our benefit and for that of the economy in general. They do not want to spend their time dealing with red tape and regulations. I suggest that the clause is unnecessary, which is why I have tabled the amendment.

Kim Howells: I am sure that the hon. Gentleman will agree with me that promoting equality of opportunity between men and women and between persons of different racial groups in relation to employment, and fair treatment of disabled persons in relation to employment are critical requirements within our multicultural society. Those requirements also have benefits in supporting greater diversity in programme content, which is not unimportant.
 The broadcasting industry has already recognised the benefits of promoting equal opportunities through its participation in voluntary initiatives, such as the cultural diversity network. However, without statutory requirements there is a risk that the progress that has been made may not be maintained and built upon. Removing those requirements could have detrimental consequences both for the diversity of content, and for social inclusion throughout the broadcasting industry. I hope that the hon. Gentleman will reflect on that and withdraw his amendment.

Andrew Robathan: If I might say so, I do not think that the Minister has even begun to answer the point that such pure duplication is unnecessary. I know that Greg Dyke considered the BBC to be ''hideously white'', but it seems to me that, as the Minister has already said, there is a very broad spectrum of society employed in broadcasting. I do not agree with this politically correct clause, but nevertheless I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn.

Andrew Robathan: I beg to move amendment No. 641, in
clause 325, page 280, line 4, leave out subsection (3).
 The amendment concerns another unnecessary burden on business. It would remove the requirement to include training-related legislation in the Bill. Businesses need to be able to draw on a skilled work force that jointly commands a wide range of talents from the highly technical to the highly creative. Those needs will fluctuate according to business needs, and the volume and focus of training required will become entirely an internal and business-driven assessment, unique to each company.

Brian White: Is the hon. Gentleman aware that there was a lot of evidence given to the Joint Committee that improving training and skills in the film, television and broadcast media was a critical factor in retaining employment in this country, and that training is a key issue that we should be addressing?

Andrew Robathan: I am being urged to say, ''Yes,'' but I was not aware of that. I apologise that I have not read all the evidence. However, my point is that such places as the National Film and Television School exist to carry out that function. Business should not be
 required, through Ofcom, to undertake such training. Businesses will undertake training if they need to.
 We do not need primary legislation in that area; it would add an unrealistic and unnecessary burden to businesses in which high standards are already achieved. If companies do not have a trained workforce, they fail, and suffer accordingly.

Kim Howells: I am somewhat perplexed by the hon. Gentleman's last amendment to the clause. Amendment No. 641, if taken with his earlier amendments, would remove all the substantive provisions of the clause, leaving only conditions that detail how the requirements that are no longer there should be implemented. I am sure that he did not intend that. Amendment No. 641 alone would remove all the requirements for Ofcom to include in the licence for the services to which the clause applies conditions requiring the service holder
''to make arrangements for the training and retraining of persons whom he employs, or in connection with— 
 (a) the provision of the licensed service; or 
 (a) the making of programmes to be included in that service.''
 We consider the training and retraining of persons employed within the broadcasting industry extremely important in order to maintain the level of skills development needed to ensure that the industry remains competitive. As my hon. Friend the Member for Milton Keynes, North-East reminded us, the Joint Committee agreed totally with that opinion, and recommended that we stick to it.

Andrew Robathan: I hear from my hon. Friend the Member for South Cambridgeshire that he is not entirely in agreement with what the Minister says about the Joint Committee. Not even the Minister can believe that Ofcom should be involved in a training regime for companies that become licence holders. I shall not press the amendment to a Division, but I think that the provision is unnecessary gobbledegook, and I suspect that the Minister agrees. However, I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Clause 325 ordered to stand part of the Bill. 
 Clause 326 ordered to stand part of the Bill.

Schedule 12 - Corresponding obligations of the BBC

Amendments made: No. 569, in 
schedule 12, page 386, line 29, leave out 'subparagraph (1)' and insert 'this paragraph'.
 No. 570, in 
schedule 12, page 386, line 30, leave out 'the' and insert 'a'.
 No. 571, in 
schedule 12, page 386, line 33, leave out 'that sub-paragraph' and insert 'this paragraph'.
 No. 572, in 
schedule 12, page 386, line 34, leave out 'the' and insert 'a'.
 No. 573, in 
schedule 12, page 386, line 37, leave out 'that sub-paragraph' and insert 'this paragraph'.
 No. 574, in 
schedule 12, page 386, line 39, leave out 'the' and insert 'a'.
 No. 575, in 
schedule 12, page 387, line 3, at end insert— 
 '(3A) The Secretary of State may also by order provide for the BBC to have the duty set out in subparagraph (3B), either instead of or as well as the one set out in subparagraph (1). 
 (3B) That duty is a duty to secure that, in each year, not less than the percentage specified in the order of the programming budget for that year for the television broadcasting services provided by the BBC is applied in the acquisition of independent productions. 
 (3C) The power to make an order under subparagraph (3A) includes power to provide that the BBC are again to be subject to a duty to which they have previously ceased to be subject by virtue of such an order, in addition to or instead of the duty to which they are subject (apart from the exercise of that power) by virtue of this paragraph. 
 (3D) The Secretary of State is not to make an order for the BBC to be or to cease to be subject to the duty mentioned in subparagraph (1) or (3B) unless— 
 (a) OFCOM have made a recommendation to him that the BBC should be subject to that duty, or should cease to be subject to it; and 
 (b) the order gives effect to that recommendation. 
 (3E) Where television broadcasting services are designated by or under an agreement having effect between the Secretary of State and the BBC for the purposes of section 193— 
 (a) as services that must be treated separately for the purposes of the duty imposed by subparagraph (1) or a duty imposed under subparagraph (3A), or 
 (b) as services that must be included in a group of services that must be taken together for the purposes of such a duty, 
 that duty is to have effect in accordance with subparagraph (3F). 
 (3F) A duty having effect in accordance with this subparagraph is to have effect as if (instead of applying to all the television broadcasting services provided by the BBC, taken together) it applied separately— 
 (a) in relation to each service that is required to be treated separately; and 
 (b) in relation to each group of services that are required to be taken together. 
 (3G) The BBC must comply with directions given to them by OFCOM for the purpose of— 
 (a) carrying forward to one or more subsequent years determined in accordance with the direction any shortfall for any year in their compliance with the duties imposed by virtue of subparagraph (1) or (3A); and 
 (b) thereby increasing the percentage applicable for the purposes of those duties to the subsequent year or years. 
 (3H) For the purposes of this paragraph— 
 (a) the amount of the programming budget for a year, and 
 (b) the means of determining the amount of that budget that is applied for any purpose, 
 are to be computed in accordance with such provision as may be set out in an order made by the Secretary of State, or as may be determined by OFCOM in accordance with such an order.'.
 No. 576, in 
schedule 12, page 387, line 8, at end insert— 
 '(6) In this paragraph— 
 ''acquisition'', in relation to a programme, includes commissioning and acquiring a right to include it in a service or to have it broadcast; and 
 ''programming budget'' means the budget for the production and acquisition of qualifying programmes.'.—[Dr. Howells.]

Michael Fabricant: I beg to move amendment No. 235, in
schedule 12, page 387, line 8, at end insert— 
 '1A(1) It shall be the duty of the BBC to secure that, in each relevant period, not less than the prescribed percentage of the total amount of time allocated to the broadcasting of qualifying programmes in the radio broadcasting services provided by them is allocated to the broadcasting of a range and diversity of independent productions. 
 (2) In subparagraph (1)— 
 (a) the reference to prescribed percentage is a reference to the percentage which the Secretary of State may by order specify; 
 (b) the reference to qualifying programmes is a reference to programmes of such description as the Secretary of State may by order specify as describing the programmes that are to be qualifying programmes for the purposes of that section; 
 (c) the reference to independent productions is a reference to programmes of such description as the Secretary of State may by order specify as describing the programmes that are to be independent productions for the purposes of that subsection; and 
 (d) the reference to a range of independent productions is a reference to a range of programmes in terms of cost of acquisition as well as in terms of the types of programme involved. 
 (3) Before making an order under subparagraph (2) above the Secretary of State shall consult with OFCOM. 
 (4) OFCOM shall, in each relevant period, make a report to the Secretary of State on the extent to which the BBC have performed their duty under subparagraph (1) above in that period.'.

Roger Gale: With this we may discuss the following: Amendment No. 631, in
schedule 12, page 387, line 8, at end insert— 
 '1A(1) It shall be the duty of the BBC to secure that, in each relevant period, not less than the prescribed percentage of the total amount of time allocated to the broadcasting of qualifying programmes in the radio broadcasting services provided by them is allocated to the broadcasting of a range and diversity of independent productions. 
 (2) In subparagraph (1)— 
 (a) the reference to prescribed percentage is a reference to the percentage which OFCOM may by order specify; 
 (b) the reference to qualifying programmes is a reference to programmes of such description as OFCOM may by order specify as describing the programmes that are to be qualifying programmes for the purposes of this paragraph; 
 (c) the reference to independent productions is a reference to programmes of such description as OFCOM may by order specify as describing the programmes that are to be independent productions for the purposes of this paragraph; and 
 (d) the reference to a range of independent productions is a reference to a range of programmes in terms of cost of acquisition as well as in terms of the types of programme involved. 
 (3) The provisions of section 388 shall apply to OFCOM's powers to make orders under this paragraph. 
 (4) OFCOM shall, in each relevant period, make a report to the Secretary of State on the extent to which the BBC have performed their duty under subparagraph (1) above in that period.'.
 New clause 16—Duties of BBC as respects independent productions for radio— 
'(1) It shall be the duty of the BBC to secure that, in each relevant period, not less than the prescribed percentage of the total amount of time allocated to the broadcasting of qualifying programmes in the radio broadcasting services provided by them is allocated to the broadcasting of a range and diversity of independent productions. 
 (2) In subsection (1)— 
 (a) the reference to prescribed percentage is a reference to the percentage which the Secretary of State may by order specify; 
 (b) the reference to qualifying programmes is a reference to programmes of such description as the Secretary of State may by order specify as describing the programmes that are to be qualifying programmes for the purposes of that section; 
 (c) the reference to independent productions is a reference to programmes of such description as the Secretary of State may by order specify as describing the programmes that are to be independent productions for the purposes of that subsection; and 
 (d) the reference to a range of independent productions is a reference to a range of programmes in terms of cost of acquisition as well as in terms of the types of programme involved. 
 (3) Before making an order under subsection (2) above the Secretary of State shall consult with OFCOM. 
 (4) OFCOM shall, in each relevant period, make a report to the Secretary of State on the extent to which the BBC have performed their duty under subsection (1) above in that period.'.
 New clause 45—Duties of BBC as respects independent productions for radio (No.2)— 
'(1) It shall be the duty of the BBC to secure that, in each relevant period, not less than the prescribed percentage of the total amount of time allocated to the broadcasting of qualifying programmes in the radio broadcasting services provided by them is allocated to the broadcasting of a range and diversity of independent productions. 
 (2) In subsection (1)— 
 (a) the reference to prescribed percentage is a reference to the percentage which OFCOM may by order specify; 
 (b) the reference to qualifying programmes is a reference to programmes of such description as OFCOM may by order specify as describing the programmes that are to be qualifying programmes for the purposes of this section; 
 (c) the reference to independent productions is a reference to programmes of such description as OFCOM may by order specify as describing the programmes that are to be independent productions for the purposes of this section; and 
 (d) the reference to a range of independent productions is a reference to a range of programmes in terms of cost of acquisition as well as in terms of the types of programme involved. 
 (3) The provisions of section 388 shall apply to OFCOM's powers to make orders under this section. 
 (4) OFCOM shall, in each relevant period, make a report to the Secretary of State on the extent to which the BBC have performed their duty under subsection (1) above in that period.'. 
 New clause 46—Duties of independent national radio stations as respects independent productions— 
 '(1) It shall be the duty of the independent national radio stations to secure that, in each relevant period, not less than the prescribed percentage of the total amount of time allocated to the broadcasting of qualifying programmes in the radio broadcasting services provided by them is allocated to the broadcasting of a range and diversity of independent productions. 
 (2) In subsection (1)— 
 (a) the reference to prescribed percentage is a reference to the percentage which OFCOM may by order specify; 
 (b) the reference to qualifying programmes is a reference to programmes of such description as OFCOM may by order specify as describing the programmes that are to be qualifying programmes for the purposes of this section; 
 (c) the reference to independent productions is a reference to programmes of such description as OFCOM may by order specify as describing the programmes that are to be independent productions for the purposes of this section; and 
 (d) the reference to a range of independent productions is a reference to a range of programmes in terms of cost of acquisition as well as in terms of the types of programme involved. 
 (3) The provisions of section 388 shall apply to OFCOM's powers to make orders under this section. 
 (4) OFCOM shall, in each relevant period, make a report to the Secretary of State on the extent to which the independent national radio stations have performed their duty under subsection (1) above in that period.'.

Michael Fabricant: Schedule 12 deals with the provision of independent quotas for BBC television in part 1 of the Bill. Being a tidy sort of person, I thought that as there are quota regulations for BBC television, there should be quota regulations for BBC radio, too. The BBC is to be congratulated for the amount of independent production that it commissions, for both television and radio, yet despite the fact that the BBC has, for many years, commissioned independent productions for television, there is provision in schedule 12 to ensure that that requirement is enshrined in the Bill. I think that there should be similar provision for radio.
 Radio is every bit as important as television. It used to be said that if television had been invented before radio, no one would have bothered to invent radio. That was proved wrong by the establishment of Radio Caroline. Suddenly, radio audiences started climbing. The sort of things that can be done while listening to the radio cannot be done while watching television. I pray in aid the Minister, who agrees with me on the importance of radio. On the morning of Thursday 23 January, I asked whether the Minister thought that independent production was as important for radio as for television. He replied: 
''We will deal with radio later''—
 we are dealing with it now— 
''but I agree entirely. First, independent production is a great impetus to competition; secondly, on the television side, it has dramatically illustrated the talent and creativity that is out there''.—[Official Report, Standing Committee E, 23 January 2003; c. 663.]
 The Minister is right, but that creativity is out there in radio, too. It might be useful to point out that more than 1,000 people are employed, directly and indirectly, in independent production in BBC radio. I shall mention some of the programmes produced. There is ''Something Understood'', introduced by Mark Tully, on Radio 4, ''Gardeners' Question Time'' on Radio 4, ''Bob Monkhouse Archive'' on Radio Five Live, ''Unsung Heroes'' on Radio 1, the Charlie Gillett series on Radio 2, ''Sound of the City'', ''Without Frontiers'' and ''Feedback'' on Radio 4 and ''Private Passions'' on Radio 3, on which both the Dean and Bishop of Lichfield featured. We would not have heard ''The Real Jeffrey Archer'' or any of ''The Real'' series on Radio 5 had the quota not been introduced. 
 The BBC has circulated a letter to Committee members dated 21 January from Jenny Abramsky, who is the director of BBC Radio music. She says rightly that the BBC has maintained their self-adopted 10 per cent. target, and that 
''the BBC has never failed to meet it''.
 Indeed, in the year 2001–02, some 13.5 per cent. of its output was from independent producers. Nevertheless, as the Government saw fit that the Bill should provide for quotas for television, I believe that similar provisions and quotas should be included for radio. 
 I pray in aid the hon. Member for Leigh (Andy Burnham), who used to be a special advisor in the Department for Culture, Media and Sport. He said in an excellent article on Monday 20 January in The Guardian: 
''It came something as a shock . . . to learn that no such quota existed for BBC radio.''
 He went on to say that the Secretary of State 
''said that she thought that the campaigners had a fair point, and that the government would consider the issue carefully.''
 My amendments are mutually exclusive, except for new clause 46. Amendment No. 235 and new clause 16 would specify that the Secretary of State should set a percentage from time to time, so I am not even defining the quota at 10 or 25 per cent. Amendment No. 631 and new clause 45 would say that it would be the role of Ofcom to set the quota, and I ask the Minister which option he would prefer to adopt. My slightly separate new clause 46 would say that not only the BBC, but independent national radio should have a quota for independent production, which should be set by Ofcom. 
 There are three minutes left, but I hope that the Minister will simply reply that he has listened and say yes.

Kim Howells: Although I understand the intention of the amendments, I fear that I cannot agree with them. As Committee members will know, there has been a statutory independent production quota for television since 1990, and the Bill provides for that to continue, as the hon. Gentleman noted. For fear of stating the obvious, radio is not television. A television service is made up of a series of discrete programmes, usually pre-recorded well in advance of broadcasting. The hon. Gentleman noted several radio programmes that are made by independent companies, many of which I listen to. I am usually packing my shirts for the week on a Sunday night and listening to Mark Tully.
 Radio, especially commercial radio, is usually live. It is not made up a series of programmes through the day, but more often of a rolling programme of presenters. Such features give commercial radio its energy, up-to-the-minuteness and distinctive character. It is not impossible to have such programmes made by independent producers, but it is harder, and there is a danger that doing so would damage the character and distinct personality of the station. We could argue long and hard about the point, but the commercial radio industry has paid for its national spectrum, and I can see no justification of burdening it with a quota for which it has no wish. 
 Independent production is not well suited to independent national radio, which is why the BBC is effectively the only commissioner of independent programmes—local commercial radio stations commission less than 1.5 per cent. of their output. As the hon. Gentleman told us, 11 years ago the BBC set itself a voluntary target to commission 10 per cent. 
 of its radio output from the independent sector. It has consistently met that target. In fact, it normally exceeds it, which demonstrates the BBC's commitment to the independent radio sector. Long may that continue.

Michael Fabricant: Does not the fact that the BBC can set its own targets demonstrate that such a quota is practical?

Kim Howells: Yes, the hon. Gentleman is right. That works for the BBC. It sees it as—
 It being Five o'clock, The Chairman proceeded, pursuant to Sessional Order D [29 October 2002] and the Order of the Committee [10 December 2002], to put forthwith the Question already proposed from the Chair. 
 Amendment negatived. 
 Amendments made: No. 577, in 
schedule 12, page 391, line 4, leave out 'subparagraph (1)' and insert 'this paragraph'.
 No. 578, in 
schedule 12, page 391, line 5, leave out 'the' and insert 'a'.
 No. 579, in 
schedule 12, page 391, line 8, leave out 'that subparagraph' and insert 'this paragraph'.
 No. 580, in 
schedule 12, page 391, line 9, leave out 'the' and insert 'a'.
 No. 581, in 
schedule 12, page 391, line 12, leave out 'that subparagraph' and insert 'this paragraph'.
 No. 582, in 
schedule 12, page 391, line 14, leave out 'the' and insert 'a'.
 No. 583, in 
schedule 12, page 391, line 19, at end insert— 
 '(3A) The Secretary of State may also by order provide for the Welsh Authority to have the duty set out in subparagraph (3B), either instead of or as well as the one set out in subparagraph (1). 
 (3B) That duty is a duty to secure that, in each year, not less than the percentage specified in the order of the programming budget for that year for the designated public services (taken together) is applied in the acquisition of independent productions. 
 (3C) The power to make an order under subparagraph (3A) includes power to provide that the Welsh Authority are again to be subject to a duty to which they have previously ceased to be subject by virtue of such an order, in addition to or instead of the duty to which they are subject (apart from the exercise of that power) by virtue of this paragraph. 
 (3D) The Secretary of State is not to make an order for the Welsh Authority to be or to cease to be subject to the duty mentioned in subparagraph (1) or (3B) unless— 
 (a) OFCOM have made a recommendation to him that the Authority should be subject to that duty, or should cease to be subject to it; and 
 (b) the order gives effect to that recommendation. 
 (3E) The Welsh Authority must comply with directions given to them by OFCOM for the purpose of— 
 (a) carrying forward to one or more subsequent years determined in accordance with the direction any shortfall for any year in their compliance with the duties imposed by virtue of subparagraph (1) or (3A); and 
 (b) thereby increasing the percentage applicable for the purposes of those duties to the subsequent year or years. 
 (3F) For the purposes of this paragraph— 
 (a) the amount of the programming budget for a year, and 
 (b) the means of determining the amount of that budget that is applied for any purpose, 
 are to be computed in accordance with such provision as may be set out in an order made by the Secretary of State, or as may be determined by OFCOM in accordance with such an order.'.
 No. 584, in 
schedule 12, page 391, line 32, leave out '' 
 'programme'' does not include an advertisement' 
 and insert— 
 ''acquisition'', in relation to a programme, includes commissioning and acquiring a right to include it in a service or to have it broadcast; 
 ''programme'' does not include an advertisement; and 
 ''programming budget'' means the budget for the production and acquisition of qualifying programmes.'.
 No. 585, in 
schedule 12, page 392, line 18, at end insert—
'(6A) The power to specify descriptions of programmes by order under subsection (6) includes power to confer such discretions on OFCOM as the Secretary of State thinks fit.'.
 No. 586, in 
schedule 12, page 393, line 47, at end insert— 
 'Code relating to programme commissioning 
 9A (1) It shall be the duty of the Welsh Authority to draw up and from time to time revise a code of practice setting out the principles that are to be applied when they or an S4C company are for a relevant purpose agreeing terms for the commissioning of independent productions. 
 (2) A relevant purpose is a purpose connected with the provision by the Welsh Authority or an S4C company of a programme service. 
 (3) It shall also be the duty of the Welsh Authority— 
 (a) at all times to comply with the code of practice which is for the time being in force under this paragraph; 
 (b) to take all reasonable steps for securing that the code is complied with by S4C companies; 
 (c) to exercise their power to revise that code to take account of revisions from time to time of the guidance issued by OFCOM for the purposes of this paragraph; and 
 (d) to comply with such directions as may be given to the Authority by OFCOM for securing that they properly perform their duties under paragraphs (a) and (b). 
 (4) The code for the time being in force under this paragraph must be such as to secure, in the manner described in guidance issued by OFCOM— 
 (a) that a reasonable timetable is applied to negotiations for the commissioning of an independent production and for the conclusion of a binding agreement; 
 (b) that there is sufficient clarity when an independent production is commissioned about the different categories of rights to broadcast or otherwise to make use of or exploit the commissioned production that are being disposed of; 
 (c) that there is sufficient transparency about the amounts to be paid in respect of each category of rights; 
 (d) that satisfactory arrangements are made about the duration and exclusivity of those rights; 
 (e) that procedures exist for reviewing the arrangements adopted in accordance with the code and for demonstrating compliance with it; 
 (f) that those procedures include requirements for the monitoring of the application of the code and for the making of reports to OFCOM; 
 (g) that provision is made for resolving disputes arising in respect of the provisions of the code (by independent arbitration or otherwise) in a manner that appears to OFCOM to be appropriate. 
 (5) The Welsh Authority must also ensure that the drawing up or revision of a code by virtue of this paragraph is in accordance with guidance issued by OFCOM as to— 
 (a) the times when the code is to be drawn up or reviewed with a view to revision; 
 (b) the consultation to be undertaken before a code is drawn up or revised; 
 (c) the publication of every code or revised code. 
 (6) The Welsh Authority must submit to OFCOM for approval a draft of— 
 (a) every code that is required to be drawn up under this paragraph; and 
 (b) every revision made by that Authority of such a code. 
 (7) A code drawn up by the Welsh Authority or a revision of such a code— 
 (a) is to have effect for the purposes of this paragraph only if approved by OFCOM; and 
 (b) if approved by OFCOM subject to modifications, is to have effect with those modifications. 
 (8) OFCOM— 
 (a) must issue and may from time to time revise guidance for the purposes of this paragraph; 
 (b) must ensure that there is always guidance for those purposes in force; 
 (c) must, before issuing their guidance or revised guidance, consult the providers of licensed public service channels, persons who make independent productions (or persons appearing to OFCOM to represent them), the BBC and the Welsh Authority; and 
 (d) must publish their guidance or revised guidance in such manner as they think appropriate. 
 (9) Guidance issued by OFCOM for the purposes of this paragraph must be general guidance and is not to specify particular terms to be included in agreements to which the guidance relates. 
 (10) OFCOM may by a direction to the Welsh Authority specify that a code which— 
 (a) was drawn up by the Authority before the commencement of this paragraph, and 
 (b) is identified in the direction, 
 is to be treated as drawn up in pursuance of this paragraph and approved by OFCOM. 
 (11) In this paragraph ''independent production'' has the same meaning as in paragraph 7.'.
 No. 612, in 
schedule 12, page 396, line 43, at end insert— 
 'Monitoring of programmes
18A (1) It shall be the duty of the Welsh Authority— 
 (a) in respect of every programme included in any of their public television services, to retain a recording of the programme in the form, and for the period, specified by OFCOM; 
 (b) to comply with any request to produce such recordings to OFCOM for examination or reproduction; and 
 (c) to comply, to the extent that they are able to do so, with any request to produce to OFCOM a script or transcript of a programme included in any of their public television services. 
 (2) The period specified for the purposes of subparagraph (1)(a) must be a period not exceeding ninety days.'.
 No. 608, in 
schedule 12, page 398, line 9, at end insert— 
 '( ) No order is to be made containing provision authorised by subparagraph (7) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.'.—[Dr. Howells.]
 Schedule 12, as amended, agreed to. 
 Clauses 327 and 328 ordered to stand part of the Bill.

Clause 329 - Imposition of penalties on the Welsh Authority

Amendments made: No. 549, in 
clause 329, page 282, line 17, at end insert— 
 '(bb) the requirements imposed by paragraph 9A of that Schedule (code relating to programme commissioning) or by a direction under subparagraph (3)(d) of that paragraph;'.
 No. 611, in 
clause 329, page 282, line 28, at end insert— 
 '( ) the requirement imposed by paragraph 18A of that Schedule (monitoring of programmes);'.—[Dr. Howells.]
 Clause 329, as amended, ordered to stand part of the Bill. 
 Clauses 330 to 333 ordered to stand part of the Bill. 
 Schedule 13 agreed to. 
 Clause 334 ordered to stand part of the Bill. 
 Further consideration adjourned.—[Mr. Jim Murphy.] 
 Adjourned accordingly at two minutes past Five o'clock till Thursday 30 January at five minutes to Nine o'clock.